SRP/AGK Bombay High Court · 2016. 10. 14. · Bombay High Court Sunil S. Gupta v Dept Of Legal Affairs & Ors. With Indur Kartar Chhugani V State Of Maharashtra & Ors OSWP-1587-15-F.DOC

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Sunil S. Gupta v Dept Of Legal Affairs & Ors. With Indur Kartar Chhugani V State Of Maharashtra & Ors

OSWP-1587-15-F.DOC

Page 1 of 72 7 January 2016

SRP/AGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1587 OF 2015

Sunil Shantisarup Gupta, Flat No. 1, 3rd Floor, Mitra Kunj, 16, Pedder Road, Mumbai 400 026

...

Petitioner

versus

1. Department of Legal Affairs, represented by The Secretary, Ministry of Law & Justice, 4th Floor, A- Wing, Shastri Bhawan, New Delhi 110 001

2. Hon’ble Chief Justice of High Court of Bombay, High Court of Bombay, Dr. Kane Road, Fort, Mumbai 400 032

3. Attorney General for India, N-234-A, Greater Kailash – 1, New Delhi 110 048

4. Advocate General, State of Maharashtra, Office of the Advocate General, Maharashtra State, Room No. 5, Extension Building, PWD, 1st Floor, Bombay High Court, Mumbai 400 032

5. The Bar Council of India, 21, Rouse Avenue, Institutional Area, New Delhi 110 002

6. The Bar Council of Maharashtra & Goa, High Court Extension, Annexe Building, Dr. Kane Road, Fort, Mumbai 400 032

7. The Supreme Court Bar Association,

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Supreme Court of India, Tilak Marg, New Delhi 110 001

8. Bombay Bar Association, Room No. 57, 3rd Floor, High Court of Bombay, Dr. M. Kane Road, Mumbai 400 032

9. The Advocates Association of Western Maharashtra, The High Court of Bombay, Dr. M. Kane Road, Mumbai 400 032

10. Transparency International India, Q. No. 4, Lajpat Bhawan, Lajpat Nagar IV, New Delhi 110 024.

11. Mid-Day Multimedia Ltd., Peninsula Centre, Dr. S.S. Rao Road, Parel, Mumbai 400 011

12. The Times of India, Dr. D.N. Road, Fort, Mumbai 400 001

13. The Free Press Journal, No. 215, 1st Floor, Free Press House, Free Press Journal Marg, Nariman Point, Mumbai 400 021

14. Samana, Satguru Darshan, Nagu Sayaji Wadi, Dainik Samana Marg, New Prabhadevi Road, Mumbai 400 025

15. Navbharat Times, Times of India Building, Dr. D.N. Road, Mumbai 400 001

16. Indian Express, Express Towers, Nariman Point, Mumbai 400 021

17. Hindustan Times Limited, Industrial Assurance Building, Churchgate, Mumbai – 400 020

18. Press Trust of India, 357, Dr. D.N. Road, Mumbai 400 001

…

Respondents


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APPEARANCES

FOR THE PETITIONER Mr. Mathews Nedumpara

FOR RESPONDENT NO. 1 Mr. Y.R. Mishra, with Mr. D.P. Singh.

FOR RESPONDENT NO. 4 Mr. Pravin Samdani, Senior Advocate, with Mr. Mayur Khandeparkar.

WITH

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 1240 OF 2015

IN

CRIMINAL APPEAL NO. 951 OF 2015

Indur Kartar Chhugani, Age 67 years, Occupation: Retired, Permanent resident of flat 501, 502, Pinky Panorama, Khar (West), Presenting residing at : C/o Manohar Makhija, 8, Ajwani Apartments, 16, Shankershet Road, Pune – 411 042

…

Applicant

versus

1. The State of Maharashtra, at the instance of EOW, Mumbai

2. Shri Mehboob Inamdar, (former Investigation Officer) Police Officer – Umri Police Station, Nanded District, Maharashtra – 431 807

…

Respondents APPEARANCES

APPLICANT IN PERSON Mr. Indur K. Chhugani.

FOR THE RESPONDENTS Mr. J.P. Yagnik, APP.


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CORAM : S.C. Dharmadhikari &

G.S.Patel, JJ.

DATED : 7th January 2016

JUDGMENT: (Per S.C. Dharmadhikari, J.)

1. The two petitions, one by the party in person and the other by

one Sunil Shantisarup Gupta, seek a common relief, viz., that this

Court should issue directions to arrange for video recording of the

proceedings in Criminal Appeal No. 951 of 2015, and generally

should direct that adequate steps and measures be initiated for video

recording the proceedings of this Court and all Courts subordinate

to it so also Tribunals within its jurisdiction. The prayer in the

petition by Sunil Shantisarup Gupta goes further to say that this

Court should allow all copies of the records to be issued to the

public on demand and on payment of costs so also allow the Court

proceedings to be telecast by the media. The prayer also is that these

proceedings be uploaded on the Internet, and if this prayer is not

maintainable then this Court should alternatively allow the

Petitioner/Petitioners to video record non-intrusively the

proceedings in which he/they are parties at his/their own costs and

efforts.

2. Sunil Gupta is a citizen of India and claims to be a litigant in

this Court. He has instituted judicial proceedings at various forums.

The Respondents to this petition are not only statutory

functionaries but authorities, viz., the Secretary in the Ministry of

Law and Justice, Government of India, the Hon’ble The Chief

Justice of this Court, the Attorney General of India and the

Advocate General for the State of Maharashtra, as also the Bar


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Council of India, the Bar Council of the State, several Bar

Associations and various media organizations.

3. The Petitioner states that in an era of information, and

especially one driven by technology, the judiciary cannot turn a

blind eye or be anaemic to change. This Court being one of record,

it should, apart from conventional methods, allow digitial video

recording of Court proceedings. The proceedings could only then

become more responsive and accountable. There are general

averments in the Writ Petition from paragraph 7 and the foundation

of all this is that judicial proceedings are public affairs and the public

at large is entitled to witness them. Unless and until the proceedings

are to be held in camera, like the Parliament of India, recording and

telecasting of the judicial proceedings be also permitted. The

instances of such nature and where recordings are permitted abroad

are then set out in the petition. It is stated that even in the United

Kingdom, the Supreme Court proceedings are recorded and

telecast, they are available on the Internet. Annexure-A is the

material in that behalf.

4. It is then claimed that in a country like ours in which majority

of the population is not professionally qualified or trained, many of

them are illiterate, allowing people to see and hear Judges will

increase their understanding of the Court proceedings without

undermining the proper administration of justice. Given the

complexity of the legal issues in judicial proceedings, the Petitioner

believes that allowing an Advocate’s argument to be filmed in

addition to judgments would improve the functioning of the

judiciary and ensure accuracy of Court records. The conduct of all

the stakeholders, including that of persons seeking and obtaining


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adjournments for the asking would be recorded and that is how the

public confidence in the system would grow and increase.

5. In the subsequent paragraphs of the petition the Petitioner

attempts to impress upon us that on par with the United States of

America where the Federal Judiciary undertook a digital video pilot

project, we should also evolve something by which Court

proceedings are recorded in audio-visual form. Further, the attempt

is to show that United States of America, Australia, Supreme Court

of Arizona and Canadian Courts etc. are well ahead in such matters

and because there is a distinct advantage of such recordings. The

counsel tried to impress us further by submitting that many times,

the Court proceedings are abused and there is ulterior intent and

motive behind initiating or prosecuting cases in court. With such

openness as would be brought by a live telecast, many people and

their causes would be exposed. It was also submitted that by

broadcast we can reduce overcrowding in the court premises. In

cases which attract enormous public interest and people are keen to

know the outcome thereof that there is a tendency to rush to court

buildings and crowd the court halls. By telecasting or video

recording, the congestion can be reduced. Reliance is placed on

paragraphs 10 to 21 of the petition and the annexures referred

therein. Our attention is also invited to the fact that if the

misunderstandings about Court proceedings have to be removed

and faith and trust of the people in the system is to be strengthened,

then, we should open up the Court proceedings to such an extent as

would enable educating the masses. In paragraph 23 of the petition,

the Petitioner states as under:


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“23. Installing high tech recording systems requires political will power backed by substantial financial means. Some jurisdictions have both the political will power financial means. Others struggle to cover the high costs of sophisticated , verbatim recording machines. In the State of Maryland in the USA and in the Republic of Kazakhstan, both the political will power, and the financial means were present and the transition from traditional recording means to new technologically advanced recording systems was successful. Maryland transitioned from paying annual salaries to 14 court reporters plus additional fees for each transcript (ranging from $8 - $9 a page for overnight fees) to an expensive, sophisticated, centralized sound recording system. The State of Maryland justified the up front cost on the basis of the long-term expected benefits including low maintenance fees, long-term life of equipment, reduced personnel and salary costs, and greater control over recording and transcript production. As the Maryland case study demonstrates, the up front costs of installing new recording systems may be justified cue to offsetting long-term benefits. Nevertheless, up front costs still remain a challenge. Some countries overcome this financial challenge by building partnerships with international institutions. In Kazakhstan, powerful political will was instrumental in forging a partnership with the United States Agency for International Development (USAID) to finance the new recording system. While the actual cost of installing high tech recording systems in key courts may seem relatively affordable, especially in light of the long-term benefits, scaling up an initial pilot project may be prohibitively expensive in certain cases. In Nigeria, it cost a modest $140,000 to install four pilot project e-recorder machines. Nigeria was able to cover these costs with a combination of assistance from international institutions


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such as the United Nations Office for Drugs and Crime (UNODC) and the German Technical Assistance Corporation (GTZ). If Nigeria decides to extend deployment beyond the four pilot projects to cover all the courts and tribunals in the country, the up front costs will multiply and may be out of Nigeria’s financial reach, without the continued financial aid of partner institutions. In any case, not all developing or developed countries have the political will power, infrastructure and /or the strong connections with partner institutions to realize new recording systems. Currently, war-torn Liberia, the courts are struggling to find housing for their operations and judges to sit for case hearings. Stabilizing the infrastructure, including reliable electrical power is also a problem. The18th progress report of the UN’s Mission in Liberia underscores the problem of finding basics, such as court housing, hiring judges and providing reliable infrastructure for conducting everyday business. Notably, there is no mention of a new court recording system, which would clearly be a significant challenge. Regardless of the financial commitment, countries from the civil law tradition contemplating an update to their court recording systems may also face a conceptual challenge related to historical tradition. While common law countries place high priority on oral testimonies and verbatim records of those testimonies, civil law countries generally place for less emphasis on verbatim recording. In Germany, the court procedure rules do not require a verbatim record of the hearings. Witness’ statements are made before the judge, and the judge summarizes these testimonies orally to the court registrar who types it. The witness / party is asked at regular intervals to confirm whether the judge’s summary is accurate, and the witness / party is encouraged to correct whatever he / she deems necessary. Audio-visual recording of witness


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examination are possible for minors or for witnesses that cannot appear at a main court hearing.”

6. The system prevalent in France is highlighted to urge that in

some countries even the Judges have taken the initiative and

requested for audio or audio-visual recording of Court hearings.

Further paragraphs of the Writ Petition are relied upon to urge that

audio-visual and other high tech recording would lead to more

transparency. Moreover, the trial court record may also be easily

transcribed, which facilitates review by the appeal courts. Most

often the record produced by the recording machines is unedited

and verbatim which can be reviewed in its original form in full or in

part by both Judges and parties on request. Accurate record

improves courtroom processes because all parties in a suit, as well as

Judges, know that their behaviour is on the record. Thus, there

would be greater accountability and all this would improve the

functioning of Courts. It would also facilitate in saving precious

judicial time.

7. Thus, automated Court recordings, according to the

Petitioner, are increasingly employed on a global scale, including in

developing and developed countries and balancing their benefits

with the cost structure, the advantage will be immense and will

outweigh any such investment by way of infrastructural costs etc. It

is in such circumstances and to eventually support the prayers and

reliefs sought that our attention is invited to these paragraphs in the

petition.

8. Mr. Indur K. Chugani the party-in-person had filed his own

proceedings and Criminal Appeal No. 951 of 2015, which was filed


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by him, has already been disposed of. However, there is a Criminal

Application therein in which reference is made by the party-in-

person – Applicant to an Application No.8 of 2011 filed in Election

Petition No.1 of 2009 for video recording the proceedings in that

Election Petition. The application was rejected on 26th September,

2011, but the Court recorded the advantages of this system. The

order passed on 12th September, 2011 by a single Judge of this

Court has been reproduced in the body of the petition itself. That

reads as under:

“1. This is an application for granting permission to the Applicant to video-record further proceedings in Election Petition No.1 of 2009 at his own costs in the interest of transparency, justice, equity and fair play on such terms and conditions as the Court may deem fit. The application has been made because the Applicant has grievance about the manner in which two Hon’ble Judges of this Court had dealt with his petition. The learned counsel for the Respondent may be right in submitting that the contentions raised in para 10 of the application are bordering on contempt. All the same, that is a matter which may be separately looked into. The learned counsel for the Respondent may also be right in submitting that since the Applicant has already approached Hon’ble The Chief Justice of India by writing a letter for similar prayer, since the orders of Hon’ble The Chief Justice of India would bind this Court, this application may not be looked into. However, since the Applicant has approached Hon’ble The Chief Justice of India, possibly in administrative capacity and not by filing any application on the judicial side, merely because the Applicant has written a letter to Hon’ble The Chief Justice of India, this application could not be rejected only on that ground. The learned counsel for the Respondent is right in submitting that this is a


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matter of policy which would require a consideration since it would have far reaching consequences.

2. The Applicant has pointed out, by submitting a compilation possibly drawn from internet, showing that in several countries various types of recordings of Court proceedings are permitted. The question is not whether Judges themselves would like proceedings in the Courts to be recorded or not. In fact, if the proceedings are recorded, the Judges may be happier, since no allegations could be made against the Judges as to what happened in the Court. But there are other players in the Court like Lawyers and litigants. None of them come to the Court with a written script. Many a times, many submissions are made across the bar. As human beings, those who participate in Court proceedings are also fallible and may not be expected to be always on the guard or to use the most appropriate expression, just as the Applicant has also stated in para 10 of his application that, Even words attributed to the Petitioner while leaving court are incorrect, actually the Petitioner told the court while leaving ‘You are trying to save election of Priya Dutt by hook or by crook. Ordinarily, a person would not have uttered such words had he known the consequences.

In any case, since the video-recording would involve scrutiny of the conduct of all the actors in the Court, this application has possibly more far reaching consequences than the main petition itself. It may change the course of conduct of the Courts. It is not any question of whether one Judge (R.C. Chavan) wants proceedings in his Court to be recorded or not because once I allow this application,it would become a precedent which may have to be followed by the lower Courts before whom such applications may be made. Therefore, this application would require a deeper


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scrutiny. Hence, notice of this application may be issued to the Advocate General, the Registrar General of this Court, the Registrar (O.S.) / Prothonotary & Senior Master as well the Secretary of the Bar Council of Maharashtra and Goa soliciting their responses, if any, within a period of fortnight, since the main petition itself is pending hearing for over two-and-half years. Simultaneously, the Registry of this Court, particularly the Registrar (Legal) and the Deputy Registrar (IT) may initiate process for evolving the modalities or rules for proper recording of proceedings in Courts in a tamper-proof manner and preserving them in a tamper-proof manner. Allowing parties to video-record the Court proceedings will be hazardous and therefore if at all recording of Court proceedings is to be allowed, it would have to be done in a proper manner, ensuring that not only what the Judge speaks is recorded but also ensuring that everybody in the Court room is within the sweep of the camera so that every action in the Court can be recorded. It would also be necessary to ensure that such recording is preserved in a tamper-proof manner and tamper-proof copies are made available to the persons concerned.

4. A recent incident in the Delhi High Court may also make judicial administration think about the possibility of video-recording of Court proceedings, since if Court proceedings are recorded and telecast, the necessity of permitting members of the public, to visit the Court, could be avoided and a large chunk of persons who would be desirous of watching Court proceedings could be allowed to do so, either at their homes or at some waiting rooms so that the security of the Court is not breached.

5. To avoid loss of time, the Registrar (Legal) should immediately take up the task of evolving the modalities


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of recording proceedings and may come back to this Court within the period of two weeks which has been given to the Advocate General, the Registrar General of this Court, the Registrar (O.S.) / Prothonotary & Senior Master, and the Secretary of the Bar Council of Maharashtra and Goa for responding to the Court notice. The Deputy Registrar (IT) may immediately start the exercise of ascertaining the type of equipment that may be required to be installed in Courts,the costs involved and the time that may be required for making Courts ready for video-recording of its proceedings. This exercise may also be carried out within two weeks, identifying the parties who may be willing to provide this infrastructure speedily. Since the Applicant has expressed his willingness to bear the costs in this regard so far as his application/petition is concerned - it may not be necessary to spend any time in tendering process.

6. List the application on 26-9-2011, at 3:00 p.m.. If the Applicant does not provide enough number of copies for being sent to the Advocate General, the Registrar General of this Court, the Registrar (O.S.) / Prothonotary & Senior Master and the Secretary of the Bar Council of Maharashtra and Goa, the Registry may itself do so, since the issue is important. The Applicant may also, in addition to the service through Court, serve all these authorities independently so that there is no loss of time.

7. The Registry may also immediately write to the Registrar Generals of all the other High Courts by fax, e-mail or other appropriate means of communication and find out what are the practices in those Courts in this regard.”


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9. Thus, relying upon this order, the party-in-person in adopting

the submissions of Mr. Nedumpara urges that if video recording or

live telecast is permitted and directed, he would demonstrate as to

how he has suffer+ed at the hands of some Judges so also because of

loss of originals and Court records. It is in these circumstances that

he argues about the general advantages of introduction of the video

recording / telecasting system of Court proceedings. Though his

Criminal Appeal is disposed of he has argued as above. We have

considered the rival contentions.

10. Pertinently none of the parties and seeking above reliefs have

pointed out any right vested in them by law which would enable us

to issue the writ prayed for. It is too well settled to require any

reference to judicial precedents that a writ of mandamus is issued

for enforcement of some legal right. There should be a legal right

vesting in the party and of which breach is complained. The failure

to redress the wrong or correct such breach enables it to take

recourse to this remedy. Thus, it cannot be urged in the absence of

any legal right that this Court must issue the writ as claimed. The

Petitioners have failed to establish any such right. No relief not

founded on law, but merely on broad principles as are narrated above

can be granted. These principles are set out in the judgment of the

Hon’ble Supreme Court reported in The Rajasthan State Industrial

Development & Investment Corporation & Anr. v Diamond and Gem

Development Corporation Ltd. & Anr.1 The Hon’ble Supreme Court

held as under:

“14. It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce

1 AIR 2013 SC 1241


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the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the Applicant, or an existing duty of the Respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal.

15. Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the Applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and


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its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the Applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand.”

11. Apart from the above, what we find is that both the

Petitioners are aware that the decisions of the nature referred by

them, namely, ordering and directing audio and visual recording of

Court proceedings or a live telecast thereof are in the realm of

policy. It cannot be made applicable to all Courts nor can all

Presiding Officers be compelled or directed to allow such recordings

in the absence of a mandate flowing from law or a clear and defined

policy having force of law.

12. The order of the learned single Judge of the Delhi High Court

relied upon by the party-in-person would reflect that it was based on

a transfer application. The transfer was directed on account of a

reasonable apprehension entertained by the parties that they would

not get justice and in an atmosphere which was charged. Therefore,

the proceedings were transferred from a Court in Delhi to another

Court in Delhi itself, namely, the Court of District & Sessions

Judge, Patiala House Court, New Delhi. In paragraph 10 of the

order passed by the learned single Judge on the transfer writ petition

dated 30th November, 2015, by consent of parties, the District &

Sessions Judge was requested to videograph the entire proceedings

in the trial to be conducted before him. The private Respondents

undertook to cover the costs of the video recording and that is how


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without the order being treated as a precedent of any nature for

future cases, the transfer petition was disposed of.

13. The other decision that has been relied upon by the party-in-

person is with regard to a fundamental right to life and liberty.

There, in the context of a preventive detention and particularly

whether such order at pre-execution stage can be set aside that all

the observations relied upon, namely, in paragraphs 10, 12, 13, 17

and 33 have been made. We do not see how they have any relevance

and simply because that is a precious right, from it flows another one

and that to insist upon a live recording of Court proceedings or

permit a litigant to video record the proceedings in a particular case

from the date of its institution till conclusion, cannot be claimed.

We do not see any such right and which can be claimed on the basis

of this judgment.

14. We have found from a reading of the relevant provisions of

the Code of Criminal Procedure that in relation to a trial, the law has

taken care by enacting a specific provision. Section 327 of the Code

of Criminal Procedure, as amended, reads thus:

“327. Court to be open.-(1) The place in which any

criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court to which the public generally may have access, so far as the same can conveniently contain them.

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have


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access to, or be or remain in, the room or building used by the Court.

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) shall be conducted in camera:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court.

Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court.

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of parties.”

15. A perusal of this would indicate as to how the Legislature

emphasizes the criminal Court to be open. The place in which any

criminal Court is held for the purpose of inquiring into or trying any

offence shall be deemed to be an open Court to which the public

generally may have access, so far as the same can conveniently

contain them. The access to justice so that injustice is removed or of


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legal injury is taken care of is one thing and access to a place where

Court holds its sittings is quite different. From a perusal of section

327, it is apparent that even that access to a place where a trial is

held or to any criminal Court can be restricted. Section 9 of the

Code of Criminal Procedure, by sub-section (6) states that a Court

of Sessions shall ordinarily hold its sitting at such place or places as

the High Court may, by notification, specify, but if any particular

case the Court of Sessions is of the opinion that it will tend to the

general convenience of the parties and witnesses to hold its sittings

at any other place in the sessions division, it may, with the consent

of the prosecution and the accused, sit at the place for the disposal

of the case or the examination of any witness or witnesses therein.

Thus, the power of the High Court to direct the Court of Sessions

to hold its sittings at such place or places as specified in the

Notification and that of the Court of Sessions with the consent of

the prosecution and the accused sit at a place and within the

meaning of sub-section (6) of section 9, is recognised and provided

for.

16. Pertinently, none of the legal provisions are challenged by the

Petitioner. Even in a civil case, the trial at all stages, right upto the

judgment, is held in a place open to public or as enumerated in

Order XX of the Code of Civil Procedure, 1908, and Section 327 of

the Code of Criminal Procedure, 1973 in open Court, then, we do

not see any basis for the complaint that the public is largely kept

away or not allowed free access to Court hearings or judicial

proceedings. If that is the admitted position and further the right of

the public can also be curtailed in exceptional circumstances, then,

all the more we do not accede to the submissions of the Petitioners

that to bring about transparency and openness, there should be a live


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telecast or live recording of Court proceedings or that parties must

have a right to insist upon a video recording or audio recording of

Court proceedings in individual cases. There has to be a legal

framework in place, based on which such reliefs as prayed can be

claimed. We have not been shown any such framework. Some

general principles or assertions in pleadings are not enough to grant

the reliefs as prayed. Further reliance placed on the procedures

followed in other countries is entirely misplaced. There cannot be

any comparison with the functioning of the Courts abroad and that

in India. We cannot on such broad and wide principles and

prevailing abroad order that in India too we must initiate the

technological changes and allow the live telecast or video recordings

or audio-visual recordings as prayed. In those countries, the laws are

enacted or there are practices prevailing which have the sanctity and

authority of law by which such measures are initiated and

implemented.

17. The learned single Judge’s order of this Court cannot be

relied upon for that order itself clarifies that it is a matter of policy

which would require a consideration and given the far reaching

consequences. Secondly, the learned Judge is aware that video

recording would involve scrutiny of the conduct of all the actors in

Court. That may change the course of judicial proceedings. It is not

a question of one Judge desiring such practices or systems be

introduced. Merely because one Judge feels so he cannot, by his

order or judgment, direct video recording of proceedings in all

Courts. There is an apprehension that such a order may be treated

as a precedent and to be followed by the subordinate Courts. As the

learned Judge was of the opinion that the application made by the

party-in-person requires a deeper scrutiny, he thought it fit to issue


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notice to the stakeholders. At the same time, allowing parties to

video record Court proceedings will be hazardous and for all this,

the learned Judge did not go beyond making some suggestions. His

directions and particularly in paragraphs 5 and 6 or his observations

in the preceding paragraphs cannot be read in isolation and picked

out of context for seeking any relief. The order by itself is thus not a

precedent. It is a opinion of a learned single Judge of this Court

which may deserve due regard and respect but based on that alone,

we cannot grant any relief.

18. The learned counsel appearing for the Petitioners in the other

petition is aware of the principles that all proceedings do not

necessarily have to be held in open court or even if the Court is open

otherwise and generally, entry to the same can be restricted by

directing the proceedings in a particular case to be held in camera.

The Family Court’s Act, 1984, itself by section 11 provides for a

discretion in the Family Court to hold the proceedings in camera if

it so desires and they can be so held if either party so desires. Given

the sensitivity and delicate nature of the proceedings, namely,

matrimonial, custody, maintenance etc. and the object and purpose

sought to be achieved by enacting the Family Courts Act, 1984, that

such discretion in the Family Court is necessary. Thus, sensitive

proceedings and which can impact the lives of litigants and parties

to great extent, that they may either be completely uprooted or

frustrated, that in their interest and to subserve larger public interest

access to the courtroom can be curtailed at their request. Certain

proceedings do not only affect the litigants and parties before a

Court of law, but others and touch their lives to such an extent as

would leave a lasting impression on them. Take the case of children

and when, therefore, they are brought to Court in custody battles or


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matrimonial proceedings, invariably the Judge interviews them in

Chambers and if it is not possible to resolve the dispute, by hearing

in open Court.

19. Therefore, it cannot be held as an absolute proposition or

principle of law that there are no exceptions to an open Court or

open hearings in a Court and unrestricted entry to the public at large

irrespective of whether they are litigants or parties before the Court.

Once the exceptions are carved out by laws, then, we cannot ignore

them. The counsel forgets that confidentiality is distinct from

secrecy. Confidentiality in some matters does not necessarily mean

secretive. There is an element of trust and faith in the system as a

whole when the Presiding Officer or a Judge assures the litigant that

whatever is narrated by him, in delicate and sensitive matters

remains in confidence and would not go beyond the record and

become accessible or available to third parties. Therefore, when the

Right to Information Act, 2005 brought in a regime of openness and

transparency and by section 4 thereof mandated the public authority

to maintain records and by section 3 gave all citizens a right to

information, it also has in it a provision such as section 8 which

exempts from disclosure of information certain information and of

the category mentioned in the same. There as well, considerations

of larger public interest would outweigh the respect for

confidentiality and privacy. Even in matters of secrecy and

particularly in relation to those involving security of the State, the

said provision, namely, Section 8 has been worded accordingly.


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20. In a decision reported in the case of Chief Information

Commissioner & Anr. v State of Manipur & Anr.,2 the Hon’ble

Supreme Court held that right to information which is intrinsic part

of fundamental right of free speech and expression guaranteed

under Article 19(1)(a) of the Constitution of India is subject to the

reasonable restrictions set out in clause (2) of Article 19. In another

decision in the case of Institute of Chartered Accountants v Shaunak

H. Satya and Ors.,3 the Hon’ble Supreme Court held that exemption

from disclosure of information held in fiduciary capacity is not a

fetter on right to information nor it discourages openness and

transparency in public affairs. In regard thereto, the Hon’ble

Supreme Court held as under:-

“17. It should be noted that section 8(1)(e) uses the words “information available to a person in his fiduciary relationship”. Significantly section 8(1)(e) does not use the words “information available to a public authority in its fiduciary relationship”. The use of the words “person” shows that the holder of the information in a fiduciary relationship need not only be a ‘public authority’ as the word ‘person’ is of much wider import than the word ‘public authority’. Therefore, the exemption under section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship. As a consequence, it

2 AIR 2012 SC 864 3 AIR 2011 SC 3336


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has to be held that the instructions and solutions to questions communicated by the examining body to the examiners, head-examiners and moderators, are information available to such persons in their fiduciary relationship and therefore exempted from disclosure under section 8(1)(d) of RTI Act.

18. The information to which RTI Act applies falls into two categories, namely, (i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption, enumerated in clauses (b) and (c) of section 4(1) of RTI Act; and (ii) other information held by public authorities not falling under section 4(1)(b) and (c) of RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo motu to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under section 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a pro-active manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But in regard to other information which do not fall under Section 4(1)(b) and (c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure. One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the Governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. The object of RTI


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Act is to harmonize the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore, when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals. Therefore, in dealing with information not falling under section 4(1)(b) and (c), the competent authorities under the RTI Act will not read the exemptions in section 8 in a restrictive manner but in a practical manner so that the other public interests are preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other public interests.

19. Among the ten categories of information which are exempted from disclosure under section 8 of RTI Act, six categories which are described in clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption, that is the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause (i) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The


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information relating to intellectual property and the information available to persons in their fiduciary relationship, referred to in clauses (d) and (e) of section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest.

25 .… Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society and the Parliament. In its wisdom, the Parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act. … Additional work load is not a defence. …

26. We, however, agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public


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interests, which include efficient operation of public authorities and Government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.”

21. When Governmental bodies and public administrators also

have been conferred with the power referred above, then, the nature

of the judicial proceedings themselves would enable a Court of law

to prevent access to the Court in certain exceptional cases. Even

access to Court records and by public cannot be claimed to be free

and unfettered.

22. It is erroneous to assume that the principle that justice should

not only be done but must be seen to be done is violated because of

lack of live recordings or live telecast on day-today basis of the

proceedings in a Court of law or refusal to allow parties to audio-

visually record the Court proceedings. That justice is done and must

be seen to have been done is a principle evolved not on the basis of

open access to Court proceedings only. That is a guarantee more

fundamental or far reaching than what the Petitioners in this case

assume to be. That is a guarantee to the litigant and parties that

justice would be meted out to them and even if they do not have the

means and resources nor are they mighty and powerful that they will

leave a Court with an impression that they have not been treated

fairly and equally. That is ensured at all costs by a Court and a

Presiding Officer. That is not in jeopardy merely because the Court

proceedings cannot be recorded live.

23. Lastly we would also impress upon the parties like Mr.

Chugani and the Petitioner in the petition that this is not for the first

time that this principle and that the Court being open to all and at all


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times is being considered. In a decision in the case of Naresh

Shridhar Mirajkar & Ors. v State of Maharashtra & Anr.,4 the

Hon’ble Supreme Court was considering the legality and validity of

an order passed by a learned single Judge of this Court during the

course of trial restraining publication of certain events and day-to-

day proceedings in a case / trial conducted before him. It was urged

that such an order, and which cannot be said to be directing

proceedings to be held in camera, but attempting curtailing the

fundamental freedom of free speech and expression and life and

liberty, should not be sustained.

24. In sustaining that order, the Supreme Court speaking through

the majority held as under:

“17. Let us, therefore, indicate clearly the scope of the enquiry in the present proceedings. The impugned order has been passed by the learned Judge in the course of the trial of a suit before him after hearing the parties and having regard to the circumstances under which the said order was passed, and the reasons on which it is presumably based, we are inclined to hold that what the order purports to do is to prohibit the publication of Mr. Goda’s evidence in the Press during the progress of the trial of the suit. We do not read this order imposing a permanent ban on the publication of the said evidence.

18. On these facts, the question which arises for our decision is whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be corrected by a writ of certiorari

4 AIR 1967 SC 1


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issued by this Court under Article 32(2). This question has two broad facets; does the impugned order violate the fundamental rights of the Petitioners under Art. 19 (1) (a, (d) and (g), and if it does, is it amenable to the writ jurisdiction of this Court under Art. 22(2)? Thus, In the present proceedings we will limit our discussion and decision to the points which have a material bearing on the broad problem posed by the petitions before us.

19. Let us begin by assuming that the Petitioners who are Journalists, have a fundamental right to carry on their occupation under Art. 19(1)(g); they have also a right to attend proceedings in court under Art. 19(1)(d); and that the right to freedom of speech and expression guaranteed by Art. 19 (1) (a), includes their right to publish as Journalists, a faithful report of the proceedings which they have witnessed and heard in court. In Sakal Papers (P) Ltd. v. Union of India, 1962 3

SCR 842 (AIR 1962 SC 305), it has been held by this Court that the freedom of speech and expression guaranteed by Art. 19 (1)(a) includes the freedom of press. That being so, the question which we have to consider is: does the impugned order contravene the Petitioner’s fundamental rights to which we have just referred?

20. Before dealing with this question, it is necessary to refer to one incidental aspect of the matter. It is well settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy objective and fair administration of justice. 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


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fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court-room. As Bentham has observed:

“In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest or all guards against improbity. It keeps the Judge himself while trying under trial in the sense that the security of securities is publicity. 1011 ALL ER 30.”

21. Having thus enunciated the universally accepted proposition in favour of open trials, it is necessary to consider whether this rule admits of any exceptions or not. Cases may occur where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera. While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the Judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? If the primary function of the court is to do justice in


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causes brought before it, then on principle, it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court. If the principle that all trials before courts must be held in puplic was treated as inflexible and universal and it is held that it admits of no exceptions whatever, cases may arise where by following the principle, justice itself may be defeated. That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. It is hardly necessary to emphasise that this inherent power must be exercised with great caution and it is only if the court is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can pass an order to hold the trial in camera; but to deny the existence of such inherent power to the court would be to ignore the primary object of adjudication itself. The principle underlying the insistence on hearing causes in open court is to protect and assist fair, impartial and objective administration of justice; but if the requirement of justice itself sometimes dictates the necessity of trying the case in camera, it cannot be said that the said requirement should be sacrificed because of the principle that every trial must be held in open court. In this connection it is essential to remember that public trial of causes is a means, though important and valuable, to ensure fair administration of justice; it is a means, not an end. It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice. That, in our opinion, is the rational basis on which the conflict of this kind must be harmoniously resolved.


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Whether or not in the present case such a conflict did in fact arise, and whether or not the impugned order is justified on the merits, are matters which are irrelevant to the present enquiry.

…

25. It would thus be noticed that according to Viscount Haldane, L.C., though it is of the essence of fair and impartial administration of justice that all causes must be tried in open court, cases may arise where the court may be satisfied that evidence can be effectively brought before it only if the trial is held in camera; and in such cases, in order to discharge its paramount duty to administer justice, the court may feel compelled to order a trial in camera.

26. The same principle has been enunciated by the other Law Lords, though they have differed in their approach as well as in their emphasis. We do not propose to refer to the statements made in the speeches of the other Law Lords, because it is clear that on the whole, the principles laid down by Viscount Haldane, L.C., appear to have received general approval from the other Law Lords. There are, no doubt, certain observations in the speeches of some Law Lords which seem to suggest that there would be no power in the court to hear a case in camera, except in the recognised cases of exceptional character to which Viscount Haldane referred. Lord Shaw, for instance, observed that

“I am of opinion that the order to hear this case in camera was beyond the power of the

Judge to pronounce. I am further of opinion that, even on the assumption that such an order had been within his power, it was beyond his power to impose a suppression


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of all reports of what passed at the trial after the trial had come to an end”.(p. 29).

It must be remembered that the order with which the House of Lords was dealing, had imposed a perpetual prohibition against the publication of the proceedings in court; and naturally, there was unanimity in the view expressed by the House of Lords that such a drastic order was not justified. That is why the conclusion of the House of Lords was that by publishing the proceedings at the end of the trial, the party concerned had not committed contempt of court. It would thus be clear from the decision of the House of in (1911) All ER 30 (supra) that courts of justice have no power to hear

cases in camera even by consent of the parties, except in special cases in which a hearing in open court might defeat the ends of justice. Therefore, as a bare proposition of law, it would be difficult to accede to the argument urged by the Petitioners before us that the High Court had no jurisdiction to pass the impugned order.

96. … For this reason the other powers are expressly mentioned and preserved. The above statutes do not only confer power to hold trials ‘in camera’, but in a way they show that trials under laws which do not contain such enabling provisions must be open and public unless a strong case exists for holding them ‘in camera’. Inherent powers can only be exercised on well-recognised principles and they cannot be assumed to exist where they do not and I see none of the facts of this case.

97. … Now the rule about reporting of cases in Court is this: what takes place in Court is public and the publication of the proceedings merely enlarges the area of the Court and gives to the trial that added publicity which is favoured by the rule that the trial


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should be open and public. It is only when the public is excluded from audience that the privilege of publication also goes because the public outside then have no right to obtain at second-hand what they cannot in the Court itself. It the matter is already published in open Court, it cannot be prevented from being published outside the Court room provided the report is a verbatim or a fair account. Accurate publication of reports is insisted upon so that the proceedings are not misrepresented. The above rules were stated by Lord Halsbury L.C. In Mcdougall v. Knight, (1889) 14 AC 194, thus

“My Lords, the ground on which the privilege of accurately reporting what takes place in a court of justice is based is that judicial proceedings are in this country public, and that the publication of what takes place there, even though matters defamatory to an individual may thus obtain wider circulation than they otherwise would, is allowed because such publication is merely enlarging the area of the court, and communicating to all that which all had the right to know.”

25. In two decisions delivered thereafter, in Mohd. Shahabuddin v

State of Bihar & Ors.,5 following this dictum, the Hon’ble Supreme

Court held as under:

“119. I have heard the learned counsel for the parties at length and carefully examined the provisions of law and the relevant Indian, English and American judgments. The judgments and other literature available on record favour public trial or open trial as a rule.

5 (2010) 4 SCC 653


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120. Cooley, J. in his well known book Cooley’s Constitutional Law, Vol I, 8th Edn., at p. 647 observed as under:

“It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are may cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard for public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility into the importance of their functions; and the requirement is fairly observed if, without partiality of favouritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.”

(emphasis supplied)


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121. Every criminal act is an offence against the society. The crime is a wrong done more to the society than to an individual. It involves a serious invasion of rights and liberties of some other person or persons. The people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate. Whether it responds appropriately to the situation or it presents a pathetic picture. This is one aspect. The other aspect is still more fundamental. When the State representing the society seeks to prosecute a person, the State must do it openly.

122. As Lord Shaw said with most outspoken words (Scott v. Scott 1913 AC 417 ): (AC p. 477)

“It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. ‘In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.’ ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’ ‘The security of securities is publicity.’ But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: ‘Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair


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constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise’.”

123. In dispensation of justice, the people should be satisfied that the State is not misusing the State machinery like the police, the prosecutors and other public servants. The people may see that the accused is fairly dealt with and not unjustly condemned. There is yet another aspect. The courts like other institutions also belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the Courts. The Courts have no such means or power. The Courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing Courts more and more to public gaze.

…

128. It will be clear from these decisions that the mandatory exclusion of the press and public to criminal trials in all cases violates the First Amendment to the United States Constitution. But if such exclusion is made by the trial Judge in the best interest of fairness to make that exclusion, it would not violate that constitutional right. It is interesting to note that the view taken by the American Supreme Court in the last case, runs parallel to the principles laid down by this Court in Naresh Shridhar Mirajkar case (AIR 1967 SC 1).


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…

133. On analysis of the provisions of law and the leading judgments which all in one voice say that in all civilized countries governed by the rule of law, all criminal trials have to be public trials where public and press have complete access. Public access is essential if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice.

134. Publicity is the authentic hallmark of judicial functioning distinct from administrative functioning. An open trial serves an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Public trial restores the balance in cases when shocking crime occurs in the society.

135. People have inherent distrust for the secret trials. One of the demands of the democratic society is that public should know what goes on in court while being told by the press or what happens there, to the end that the public may judge whether our system of criminal justice is fair and right. Criminal trial is a public event. What transpires is a public property. Therefore, I have no difficulty in concluding that open trial is the universal rule and must be scrupulously adhered to. The right to public trial has also been recognized under section 327 of the Code.

136. The importance of public trial in a democratic country governed by rule of law can hardly be over emphasized, but at the same time I cannot overlook the fact that primary function of the judiciary is to do justice between the parties which bring their causes before it. Therefore, it is difficult to accede to the proposition that there cannot be any exception to the universal rule that all cases must be tried in open court. In a case of


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extraordinary nature, the universal rule of open trial may not be adhered to. This is the settled legal position crystallized by a three-Judge Bench of this court in Kehar Singh case [(988) 3 SCC 609] . The High Court

looking to the exceptional and extraordinary circumstances can take such a decision and no personal hearing is warranted before taking such a decision.

137. The test as laid down by this Court in Kehar Singh’s case is whether public could have reasonable

access to the court room. The court noted: (SCC p. 701, para 186)

“186. It may now be stated without contradiction that jail is not a prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons. The enquiry or trial, however, must be conducted in open Court. There should not be any veil of secrecy in the proceedings. There should not even be an impression that it is a secret trial. The dynamics of judicial process should be thrown open to the public at every stage. The public must have reasonable access to the place of trial. The Presiding Judge must have full control of the Court house. The accused must have all facilities to have a fair trial and all safeguards to avoid prejudice.”


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26. Even in the case of Sahara India Real Estate Corporation

Limited v SEBI & Anr.,6 the Constitution Bench of the Hon’ble

Supreme Court of India held as under:

“31. In Naresh Shridhar Mirajkar v. State of Maharashtra, this Court dealt with the power of a court

to conduct court proceedings in camera under its inherent powers and also to incidentally prohibit publication of the court proceedings or evidence of the cases outside the court by the media. It may be stated that “open Justice” is the cornerstone of our judicial system. It instills faith in the judicial and legal system. However, the right to open justice is not absolute. It can be restricted by the court in its inherent jurisdiction as done in Mirajkar’s case if the necessities of administration of justice so demand [see Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883]. Even in US, the

said principle of open justice yields to the said necessities of administration of justice [see: Globe Newspaper Co. v. Superior Court]. The entire law has

been reiterated once again in the judgment of this Court in Mohd. Shahabuddin v. State of Bihar, affirming

judgment of this Court in Mirajkar’s case.

32. Thus, the principle of open justice is not absolute. There can be exceptions in the interest of administration of justice. In Mirajkar, the High Court ordered that the deposition of the defence witness should not be reported in the newspapers. This order of the High Court was challenged in this Court under Article 32. This Court held that apart from Section 151 of the Code of Civil Procedure, the High Court had the inherent power to restrain the press from reporting where administration of justice so demanded. This Court held vide AIR para 30 that evidence of the

6 (2012) 10 SCC 603


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witness need not receive excessive publicity as fear of such publicity may prevent the witness from speaking the truth. That, such orders prohibiting publication for a temporary period during the course of trial are permissible under the inherent powers of the court whenever the court is satisfied that interest of justice so requires. As to whether such a temporary prohibition of publication of court proceedings in the media under the inherent powers of the court can be said to offend Article 19(1)(a) rights (which includes freedom of the press to make such publication], this Court held that an order of a court passed to protect the interest of justice and the administration of justice could not be treated as violative of Article 19(1)(a) (see AIR para 12). The judgment of this Court in Mirajkar is delivered by a Bench of 9-Judges and is binding on this Court.”

27. One must sound a note of caution and need not be necessarily

enthusiastic given the state of literacy and understanding of the

Court proceedings in India. The repercussions and ramifications of

allowing live telecast or live recordings of certain cases or in general

would be far too serious bearing in mind the sensitivity of matters in

Court. Criminal and civil trials involving individual dignity,

reputation and status if telecast live and as a matter of routine not

only exposes parties before the Court but provides opportunity to

the viewers to peep into their private disputes and render judgments

about their conduct and character. We have already seen in

numerous instances of famous trials and Court cases inviting

strange reactions and responses from the viewing public. Sometimes

a trial of a criminal or a civil case evinces so much interest and

generates such feelings that people in India are known to perform

extreme acts. The Hon’ble Supreme Court noted that the impact of

print and electronic media so also the medium of cinema is so


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enormous that people have repeated the stunts and the roles in real

life.

28. In the case of R. Rajgopal alias R. R. Gopal & Anr. v State of

Tamil Nadu & Ors.,7 the Hon’ble Supreme Court noted that if

privacy of litigants and those involved in Court proceedings is not

protected and undue publicity is given to murder trials and to those

accused of heinous crimes, there will be a large scale tendency of

repeating and following their acts and their personality in general.

Therefore, it is necessary to impose certain restraints on oneself.

Once the right to privacy is implicit in the right to life and liberty

guaranteed to the citizens as held by the Hon’ble Supreme Court

and the right to let alone should not be violated casually and

importantly those performing public acts also require protection

that a balance will have to be struck. That balance is to curtail

certain fundamental freedoms to subserve larger public interest. In

this regard, the following observations of the Hon’ble Supreme

Court are pertinent:

“23. The question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system. So far as the freedom of press is concerned, it flows from the freedom of speech and expression guaranteed by Article 19(1)(a). But the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of

7 AIR 1995 SC 264


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the right to privacy and defamation and Section 499/500 IPC are the existing laws saved under clause (2). But what is called for today in the present times is a proper balancing of the freedom of press and said laws consistent with the democratic way of life ordained by the Constitution. Over the last few decades, press and electronic media have emerged as major factors in our nation’s life. They are still expanding and in the process becoming more inquisitive. Our system of Government demands as do the systems of Government of the United States of America and United Kingdom constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good Government. At the same time, we must remember that our society may not share the degree of public awareness obtaining in United Kingdom or United States. The sweep of the First Amendment to the United States Constitution and the freedom of speech and expression under our Constitution is not identical though similar in their major premises. All this may call for some modification of the principles emerging from the English and United States decisions in their application to our legal system. The broad principles set out hereinafter are evolved keeping in mind the above considerations. But before we set out those principles, a few more aspects need to be dealt with.

24. We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials, as the case may be? We think not. No law empowering them to do so is brought to our notice. As observed in New York Times v. United States

((1971) 403 US 713), popularly known as the Pentagon papers case, “any system of prior restraints of (freedom of) expression comes to this Court bearing a heavy presumption against its constitutional validity” and that


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in such cases, the Government “carries a heavy burden of showing justification for the imposition of such a restraint”. We must accordingly hold that no such prior restraint or prohibition of publication can be imposed by the Respondents upon the proposed publication of the alleged autobiography of ‘Auto Shankar’ by the Petitioners. This cannot be done either by the State or by its officials. In other words, neither the Government nor the officials who apprehend that they may be defamed, have the right to impose a prior restraint upon the publication of the alleged autobiography of Auto Shankar. The remedy of public officials/public figures, if any, will arise only after the publication and will be governed by the principles indicated herein.

…

28. We may now summarise the broad principles flowing from the above discussion:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects


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becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3) There is yet another exception to the rule in (1) above — indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the Defendant) with reckless disregard for truth. In such a case, it would be enough for the Defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the Defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as


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their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.”

29. Lastly and importantly, in a decision which is termed as far

reaching and virtually a milestone delivered in the case of Secretary,

Ministry of Information and Broadcasting, Govt. of India & Ors. v.

Cricket Association of Bengal & Ors.,8 the Hon’ble Supreme Court

held that electronic media and its place in today’s society would

encourage citizens to assert the freedom of speech and expression in

unrestricted and unrestrained manner. That is not conducive to true

democracy. Eventually, airwaves are not property of the electronic

media and those controlling it. It is the public who has control over

such airwaves, their views would be permitted consistent with the

constitutional ethos and constitutional scheme. The Hon’ble

Supreme Court enunciated and elaborated this principle in the

following notes:

8 AIR 1995 SC 1236


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“11. We may now summarise the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self expression which is an important means of free conscience and self fulfillment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country as well as abroad as is impossible to reach.

This fundamental right can be limited only by reasonable restrictions under a law made for purpose mentioned in Article 19(2) of the Constitution.

The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifically spelt out under Article 19(2) of our


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Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2).

12. What distinguishes the electronic media like the television from the print media or other media is that it has both audio and visual appeal and has a more pervasive presence. It has a greater impact on the minds of the viewers and is also more readily accessible to all including children at home. Unlike the print media, however, there is a built-in limitation on the use of electronic media because the airwaves are a public property and hence are owned or controlled by the Government or a central national authority or they are not available on account of the scarcity, costs and competition.

…

24. We, therefore, hold as follows:

(i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any other public property.

(ii) The right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the


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exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution.

(iii) The Central Government shall take immediate steps to establish an independent autonomous public authority representative of all sections and interests in the society to control and regulate the use of the airwaves.

(iv) Since the matches have been telecast pursuant to the impugned order of the High Court, it is not necessary to decide the correctness of the said order.

(v) The High Court will now apportion between the CAB and the DD the revenues generated by the advertisements on T.V. during the telecasting of both the series of the cricket matches, viz., the Hero Cup, and the International Cricket Matches played in India from October to December 1994, after hearing the parties on the subject.”

30. Finally, in the concurring judgment His Lordship the Hon’ble

Mr. Justice B.P. Jeevan Reddy held as under:

“52. Article 19(1)(a) declares that all citizens shall have the right of freedom of speech and expression. Clause (2) of Article 19, at the same time, provides that nothing in sub-clause (1) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly


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relations with the foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence. The grounds upon which reasonable restrictions can be placed upon the freedom of speech and expression are designed firstly to ensure that the said right is not exercised in such a manner as to threaten the sovereignty and integrity of India, security of the State, friendly relations with the foreign States, public order, decency or morality. Similarly, the said right cannot be so exercised as to amount to contempt of court, defamation or incitement of an offence. Existing laws providing such restrictions are saved and the State is free to make laws in future imposing such restrictions. The grounds aforesaid are conceived in the interest of ensuring and maintaining conditions in which the said right can meaningfully and peacefully be exercised by the citizens of this country.

53. The freedom of speech and expression is a right given to every citizen of this country and not merely to a few. No one can exercise his right of speech in such a manner as to violate another man’s right of speech. One man’s right to speak ends where the other man’s right to speak begins. Indeed, it may be the duty of the State to ensure that this right is available to all in equal measure and that it is not hijacked by a few to the detriment of the rest. This obligation flows from the preamble to our Constitution, which seeks to secure to all its citizens liberty of thought, expression, belief and worship. State being a product of the Constitution is as much committed to this goal as any citizen of this country. Indeed, this obligation also flows from the injunction in Article 14 that “the State shall not deny to any person equality before the law” and the direction in Article 38(2) to the effect: “the State, shall, in particular endeavour to eliminate inequalities in status, facilities


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and opportunities, not only amongst individuals but also amongst groups of people. ...” Under our Constitutional scheme, the State is not merely under an obligation to respect the fundamental rights guaranteed by Part-III but under an equal obligation to ensure conditions in which those rights can be meaningfully and effectively enjoyed by one and all.

…

83. A look at the grounds in clause (2) of Article 19, in the interests of which a law can be made placing reasonable restrictions upon the freedom of speech and expression goes to show that they are all conceived in the national interest as well as in the interest of society. The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of grounds, viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the interest of society. The inter-connection and the inter- dependence of freedom of speech and the stability of society is undeniable. They indeed contribute to and promote each other. Freedom of speech and expression in a democracy ensures that the change desired by the people, whether in political, economic or social sphere, is brought peacefully and through law. That change desired by the people can be brought about in an orderly, legal and peaceful manner is by itself an assurance of stability and an insurance against violent upheavals which are the hall-mark of societies ruled by dictatorships, which do not permit this freedom. The stability of, say, the British nation and the periodic convulsions witnessed in the dictatorships around the world is ample proof of this truism. The converse is


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equally true. The more stable the society is, the more scope, it provides for exercise of right of free speech and expression. A society which feels secure can and does permit a greater latitude than a society whose stability is in constant peril. As observed by Lord Sumner in Bowman v. Secular Society Ltd., 1917 AC 406:

“The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before ... After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact. I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the movement, whatever that right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion ... which prevents us from varying their application to the particular circumstances of our time in accordance with that experience.”

84. It is for this reason that our founding fathers while guaranteeing the freedom of speech and


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expression provided simultaneously that the said right cannot be so exercised as to endanger the interest of the nation or the interest of the society, as the case may be. This is not merely in the interest of nation and society but equally in the interest of the freedom of speech and expression itself, the reason being the mutual relevance and inter-dependence aforesaid.

…

88. The importance and significance of television in the modern world needs no emphasis. Most people obtain the bulk of their information on matters of contemporary interest from the broadcasting medium. The television is unique in the way in which it intrudes into our homes. The combination of picture and voice makes it an irresistibly attractive medium of presentation. Call it idiot box or by any other pejorative name, it has a tremendous appeal and influence over millions of people. Many of them are glued to it for hours on end each day. Television is shaping the food habits, cultural values, social mores and what not of the society in a manner no other medium has done so far. Younger generation is particularly addicted to it. It is a powerful instrument, which can be used for greater good as also for doing immense harm to the society. It depends upon how it is used. With the advance of technology, the number of channels available has grown enormously. National borders have become meaningless. The reach of some of the major networks is international; they are not confined to one country or one region. It is no longer possible for any government to control or manipulate the news, views and information available to its people. In a manner of speaking, the technological revolution is forcing inter-nationalism upon the world. No ‘nation can remain a fortress or an island in itself any longer. Without a


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doubt, this technological revolution is presenting new issues, complex in nature - in the words of Burger, C.J., “complex problems with many hard questions and few easy answers”. Broadcasting media by its very nature is different from Press. Airwaves are public property. The fact that a large number of frequencies/channels are available does not make them anytheless public property. It is the obligation of the State under our constitutional system to ensure that they are used for public good.

…

90. From the standpoint of Article 19(1)(a), what is paramount is the right of the listeners and viewers and not the right of the broadcaster - whether the broadcaster is the State, public corporation or a private individual or body. A monopoly over broadcasting, whether by government or by anybody else, is inconsistent with the free speech right of the citizens. State control really means governmental control, which in turn means, control of the political party or parties in power for the time being. Such control is bound to colour the views, information and opinions conveyed by the media. The free speech right of the citizens is better served in keeping the broadcasting media under the control of public. Control by public means control by an independent public corporation or corporations, as the case may be, formed under a statute. As held by the Constitutional Court of Italy, broadcasting provides an essential service in a democratic society and could legitimately be reserved for a public institution, provided certain conditions are met. The corporation(s) must be constituted and composed in such a manner as to ensure its independence from government and its impartiality on public issues. When presenting or discussing a public issue, it must be ensured that all


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aspects of it are presented in a balanced manner, without appearing to espouse any one point of view. This will also enhance the credibility of the media to a very large extent; a controlled media cannot command that level of credibility. For the purpose of ensuring the free speech rights of the citizens guaranteed by Article 19(1)(a), it is not necessary to have private broadcasting stations, as held by the Constitutional Courts of France and Italy. Allowing private broadcasting would be to open the door for powerful economic, commercial and political interests, which may not prove beneficial to free speech right of the citizens - and certainly so, if strict programme controls and other controls are not prescribed. The analogy with press is wholly inapt. Above all, airwaves constitute public property. While, the freedom guaranteed by Article 19(1)(a) does include the right to receive and impart information, no one can claim the fundamental right to do so by using or employing public property. Only where the statute permits him to use the public property, then only - and subject to such conditions and restrictions as the law may impose - he can use the public property, viz., airwaves. In other words, Article 19(1)(a) does not enable a citizen to impart his information, views and opinions by using the airwaves. He can do so without using the airwaves. It need not be emphasised that while broadcasting cannot be effected without using airwaves, receiving the broadcast does not involve any such use. Airwaves, being public property must be utilised to advance public good. Public good lies in ensuring plurality of opinions, views and ideas and that would scarcely be served by private broadcasters, who would be and who are bound to be actuated by profit motive. There is a far greater likelihood of these private broadcasters indulging in mis-information, disinformation and manipulation of news and views than the government-controlled media, which is at least


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subject to public and parliamentary scrutiny. The experience in Italy, where the Constitutional Court allowed private broadcasting at the local level while denying it at the national level should serve as a lesson; this limited opening has given rise to giant media oligopolies as mentioned supra. Even with the best of programme controls it may prove counter-productive at the present juncture of our development; the implementation machinery in our country leaves much to be desired which as is shown by the ineffectiveness of the several enactments made with the best of the intentions and with most laudable provisions; this is a reality which cannot be ignored. It is true that even if private broadcasting is not allowed from Indian soil, such stations may spring up on the periphery of or outside our territory, catering exclusively to the Indian public. Indeed, some like stations have already come into existence. The space, it is said, is saturated with communication satellites and that they are providing and are able to provide any number of channels and frequencies. More technological developments must be in the offing. But that cannot be a ground for enlarging the scope of Article 19(1)(a). It may be a factor in favour of allowing private broadcasting - or it may not be. It may also be that the Parliament decides to increase the number of channels under the Doordarshan, diversifying them into various fields, commercial, educational, sports and so on. Or the Parliament may decide to permit private broadcasting, but if it does so permit, it should not only keep in mind the experience of the countries where such a course has been permitted but also the conditions in this country and the compulsions of technological developments and the realities of situation resulting from technological developments. We have no doubt in our mind that it will so bear in mind the above factors and all other relevant circumstances. We make it clear, we are not concerned


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with matters of policy but with the content of Article 19(1)(a) and we say that while public broadcasting is implicit in it, private broadcasting is not. Matters of policy are for the Parliament to consider and not for courts. On account of historical factors, radio and television have remained in the hands of the State exclusively. Both the networks have been built up over the years with public funds. They represent the wealth and property of the nation. It may even be said that they represent the material resources of the community within the meaning of Article 39(b) They may also be said to be ‘facilities’ within the meaning of Article 38. They must be employed consistent with the above articles and consistent with the constitutional policy as adumbrated in the preamble to the Constitution and Parts III and IV. We must reiterate that the Press whose freedom is implicit in Article 19(1)(a) stands on a different footing. The Petitioners - or the potential Applicants for private broadcasting licenses - cannot invoke the analogy of the press. To repeat, airwaves are public property and better remain in public hands in the interest of the very freedom of speech and expression of the citizens of this country.”

31. Hon’ble Mr. Justice V. R. Krishna Iyer, an eminent jurist

opined, “as well said by the father of the Nation Mahatma Gandhi,

in whose name we vouch”, that “justice in court is an expensive

luxury” and then gave us a talisman, which is as follows:-

“Whenever you are in doubt or when the self becomes too much that with you, apply the following test: recall the face of the poorest and weakest man to whom you may have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him control over his own life and destiny? In other words, will it lead to


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swaraj for the hungry and spiritually starving millions? Then, you will find your doubts and self melting away.”

32. We feel that this should be the ultimate test and if the exercise

that the Petitioners desire the judiciary to undertake without any

law, legislation or rule in the field, will benefit or serve the common

man or take justice out of his reach is the question that they must

ask themselves.

33. When a balance is struck by the highest Court in the land,

mindful as it is and recognizing the emphasis on a Court of law to be

open so also all trials to be open and accessed by public freely,

equally the reporting in print and electronic media, we cannot

entertain this petition. We are bound by these judgments and

principles laid down therein. We cannot override them or brush

them aside and order an altogether new regime. These are the

reasons for our operative conclusion of the dismissal of the petition.

(S. C. Dharmadhikari, J.)

Per G. S. Patel, J. (concurring):

34. I have had the privilege of reading in draft the elaborate and

erudite judgment of my learned brother, S.C. Dharmadhikari J. I

agree with his conclusions, and his reasons. I take the liberty of

supplmenting those reasons with a few of my own, approaching the

issues from a slightly different perspective.

35. It is not I think necessary to set out at any great length the

factual background to these matters. Neither Mr. Chhugani, who

appears pro se in associated Criminal Application No. 1240 of 2015


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in Criminal Appeal No.951 of 2015, nor Mr. Nedumpara for the

Petitioner in Writ Petition No. 353 of 2015, have canvassed in detail

the merits of their respective cases before us for decision. That is as

it should be, for the issue they raise is larger and unconnected to any

particular case. Both Mr. Chugani and Mr. Nedumpara have instead

restricted themselves to a single facet: the imperative for video

recording and broadcasting live the daily proceedings of our Courts.

Understandably, Mr. Chhugani comes at this from a very personal

experience. He seems embittered by his personal experience in a

litigation that he has battled himself for some time. He claims, in

essence, that there is at least one instance when, had the Court’s

proceedings been recorded, matters might have turned out very

differently for him. I do not think it is necessary to expand on this

any further, for what lies before us is a test of whether what Mr.

Chhugani suggests is viable as general standard or practice.

36. But before I assess the relative merits and demerits of the

proposal, I believe it is necessary to note that both Petitions, coming

though from divergent backgrounds, are based on a single central

postulate: that our courts, and the judges who preside over them, are not

to be trusted. Both are Petitions of mistrust. Both are Petitions of

suspicion. Mr. Nedumpara’s brief says this in so many words, and

then advocates a ‘cure’, ostensibly to put courts and judges beyond

suspicion. For instance, in paragraph 21 of his Petition, Mr.

Nedumpara says that we need a ‘strong, transparent and

trustworthy’ judiciary, meaning of course that it is none of those

things; and, perhaps more importantly, that it is not even capable of

any of those things. In paragraph 31, his Petition speaks of ‘greater

transparency’, as if to suggest there is something clandestine,

surreptitious or secretive about the judicial process, as a rule; that


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judges work in the shadows like some medieval cabal or a secret

guild from a fictional potboiler. Then, in paragraph 32, he Advocates

video recording to ‘monitor’ and ‘improve performances’ of judges

and parties. Note this language; it is telling: ‘monitor’; ‘improve

performance’. Ergo, without exception, all judges are recalcitrant

truants, and so in need of constant monitoring, always sub-par and

so in need of improvement. I notice that there is no mention of

monitoring or improving the ‘performances’ of lawyers. I will have

more to say on this in a bit. But ex hypothesi, the Petition supposes

that all judicial processes in our Courts are shut; effectively that

they are in camera when they should be on camera. Once it is shown,

as Dharmadhikari J has, that there is simply no basis for any such

supposition; that our law leans toward open trials and not in camera

proceedings, the Petition loses its substratum.

37. In paragraph 41, Mr. Nedumpara speaks of the ‘right of a

Petitioner’ (presumably any litigant) to record the proceedings,

albeit unobtrusively. Dharmadhikari J has already dealt with this

aspect of a vested legal right, and quite correctly pointed out that

there is no such legal right, let alone one that vests, and therefore no

question of its enforcement by the issue of a mandamus, a high

prerogative remedy to be used with caution.

38. There is then, in Mr. Nedumpara’s Petition, a lengthy

dissertation on what is described as a worldwide trend toward

permitting not just video recording but also the live televising and

broadcasting of court proceedings. This is spoken of as the norm in

various jurisdictions, including Liberia, Nigeria, Kazakhstan,

Bulgaria, Thailand and so on. There is no reason, it is argued, why

our judiciary should be ‘left behind’. Even the Supreme Court of the


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United States allows audio recording, he says, though not yet

televised broadcasts of its proceedings or video recording. The

reasoning seems to be this: a digital recording is modern technology.

Its benefits are many. It can be stored almost indefinitely. It can

prove useful as a reference should the need ever arise. It lends itself

to accurate transcription. It is, therefore, fully objective. Nothing is

lost by keeping a recording and, conceivably, much is gained.

39. These two arguments are distinct, and in these Petitions,

needlessly confused. The first argument speaks of the need for such

recordings, and it is, as I have noted, founded on a wholly

unfounded suspicion and distrust. The second is seemingly more

innocuous: all other reasons apart, if other jurisdictions have

adopted these modern methods, we should follow suit; they are a

likely convenience, equally useful to judge, lawyer and litigant.

40. It is difficult to accept any part of this argument, as its

foundational construct is so utterly and egregiously misdirected.

Nobody suggests that courts are free from error. Throughout

recorded human history, they never have been. The annals of

mankind’s progress are littered with instances of courts in error. Yet

judicial systems, adversarial or otherwise, have endured and are an

integral to what we now accept it means to be a ‘civilized’ and ‘civil’

society. All known and recognized judicial systems acknowledge the

possibility of error. Therefore: courts of appeal, and provisions for

review and revision, all in-built corrective mechanisms. There are

permissible and legitimate steps available to all courts to correct

course. This has worked for two millenia. It works still. There is no

basis for the assertion that without video recording some great evil

will continue to be perpetrated. The authorities and precedent


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quoted in Dharmadhikari J’s judgment speak again and again of

publicity. This does not mean advertising. This does not mean more

than keeping the process open and transparent. Video recording

adds nothing to this, and takes away a very great deal, as we shall

presently see.

41. I see the Petitioners’ statements against our judicial processes

as far from neutral. They operate only on a single, fatally flawed

assumption: that while Courts and judges are arbitrary,

unreasonable and untrustworthy, other pillars of a free, open and

democratic society are always and invariably balanced and

responsible. In particular, public media is reliable, fair and even-

handed. Nothing in our collective experience suggests this to be

even remotely true. There is no dearth of recent experience that

speaks to wholly unbalanced ‘trials by media’, where the legitimate

and legally sound determination of cases is attempted to be forced

into imbalance by creating a fear of whipped up public odium. We

note, with no little dismay, that there is no reflection of this at all in

the Petitions before us. Structurally and operationally, the

submissions assume that there is not the slightest risk of

misrepresentation or misinformation were judicial proceedings to be

sent out ‘live’; that viewers would watch the entire process through;

that there is not the least chance of a lopsided or sensationalist

media coverage of a single incident, assertion or piece of evidence

affecting the judicial determination of a complex case. We do not

think this is accurate. We have already seen much second-guessing

of judicial orders and a resultant undermining of public confidence

in the judiciary. There are instances of brash news anchors unable to

distinguish between bail and acquittal, of equating the former with

what is popularly called ‘a clean chit’ and consequently raising sub-


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silentio question marks over the competence and integrity of our

judges.

42. Some 11 years ago, the late Justice Antonin Scalia of the US

Supreme Court said this in an interview to C-SPAN:9

“I wouldn’t mind having the proceedings of the court, not just audioed, but televised, if I thought it would only go out on a channel that everyone would watch gavel to gavel. But if you send it out on C-SPAN, what will happen is for every one person who sees it on C-SPAN gavel to gavel so they can really understand what the court is about, what the whole process is, 10,000 will see 15-second takeouts on the network news, which, I guarantee you, will be uncharacteristic of what the court does. So I have come to the conclusion that it will misinform the public rather than inform the public to have our proceedings televised.”

In 2006, he reasserted this position for Georgetown University’s

“Blue and Gray”:

“If I thought that cameras in the Supreme Court would really educate the people, I would be all for it. But I think it would miseducate and misinform. Most of the time the court is dealing with bankruptcy code, the internal revenue code, [the labor law] ERISA — stuff only a lawyer would love. Nobody’s going to be watching that gavel-to-gavel except a few C-SPAN junkies. For every one of them, there will be 100,000 people who will see maybe 15 second take-out on the

9 Interview with C-SPAN on Sunday, 29 July 2005 on C-SPAN. Available

at http://sites.c-pan.org/camerasInTheCourt/index.html#antoninscalia. Video at: https://www.youtube.com/watch?v=F6gktBWhzc8&feature=youtu.be


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network news, which I guarantee you will be uncharacteristic of what the Supreme Court does.”

43. We may ourselves be at some distance ideologically from

Justice Scalia on any number of matters, but on this issue we find

ourselves in complete accord with him. He was repeatedly asked this

question.10 Over and over again he pointed to the dangers of

televised proceedings being reduced to mere entertainment,11 and of

this being wholly opposed to the traditional role of judges as ‘having

retired’ from public view, of not being prominent in the public

domain, qualities that are as eminently sensible as they are

necessary. In India, we do not, of course, use gavels. But a gavel is a

mere accessory. The point being made is hard to resist: there is

nothing to convince us that the televising or video recording of court

proceedings would be viewed in the holistic, dispassionate and

detached manner that is necessary to the judging process. Federal

Rule 53 has prohibited cameras in the courtroom since 1946. That

rule was expanded in 1972 to include TV cameras. In 1999,

legislation was introduced that would have allowed cameras into

courtrooms. The US Supreme Court responded by releasing audio

recordings — but only after arguments concluded. This is a vital point

of distinction: sending out the ‘feed’ in real-time, live; and releasing

it at a later stage, in whole. We find it difficult to discern any logical

basis for the former; and given the nature of our record keeping,

even the latter is unnecessary as an invariable rule.

10 http://www.c-span.org/video/?c4495954/justices-scalia-cameras-

supreme-court 11 Statements in various for a between 1988 and 2006.


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44. It is true that even on the US Supreme Court there is no

absolute consensus: Chief Justice John Roberts and Justices

Kennedy and Thomas have been against it; Justice Breyer non-

committal; Justice Alito leaning toward allowing it; and Justices

Ginsburg, Sotomayor and Kagan at various time solidly in favour of

it.12 Justice Scalia’s view seems to have been based on a mistrust of

the media. While we may not share that mistrust in quite the same

measure, we are equally unconvinced that it is entirely without

basis, and we find ourselves at some distance from a whole-hearted

and unquestioning trust as well. We have for ourselves seen, and

continue to see, the tendency of not just being selective — that is

perhaps inevitable given the nature of the medium — but its

pronounced slant toward the sensationalist, the prurient and the

salacious.

45. Our judicial system is adversarial, not gladiatorial. Our courts

are not the amphitheatres of Roman times, though much of our law

is descended from Roman law. What happens in Court on a minute-

to-minute basis is often unrelated or tangential to the final result.

The Congressional Report Services report of 2006 quotes Chief

Judge Edward Becker of Third Circuit Federal Court of Appeals as

saying:13

“The oral argument process is very intense, rigorous. It’s rough. Judges play devil’s advocate. Sometimes you deride a counsel’s argument so as to bring him or her out and to test the argument. You do it to both sides.”

12 Robert Kessler, ‘Why aren’t cameras allowed in the Supreme Court?’

(2013), The Wire; at http://www.thewire.com/national/2013/03/case-allowing-cameras-supreme-court-proceedings/63633/

13 CRS Report for Congress, ‘Televising Supreme Court and Other Federal Court Proceedings: Legislation and Issues’ (2006).


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46. This dialectic of questioning, probing, testing is constant.

Taken out of context, a single question, sometimes sharply worded,

from the Bench is apt to be misread. The entire context and colour

changes. Our attempt as judges is to remove emotion from the

judicial decision-making process. As Jonathan Temm, once

President of the New Zealand Law Society, observed, television

coverage re-introduces emotion. The focus of live telecasts, he

argued, was to provide entertainment. This can only erode

confidence in the justice delivery system and foment public odium

for a given accused or a litigant long before the final decision or

verdict.14

47. We wonder what the Petitioners before us, and Mr.

Nedumpara himself in particular, would make of what appears to us

to be the inevitable consequence of an acceptance of his proposal;

this one in particular: that, being on ‘candid camera’, lawyers would

also be forced confine their arguments to pre-decided time limits.

Counsel at our Bar do tend to go on a fair bit —often quite an unfair

bit — wearyingly covering the same ground ad infinitum. They do

this possibly in the belief that constant repetition might yield a

quasi-Gobbelsian result of, if not penetrating a judicial mind that

lawyers will, as is their wont, later describe as especially dim, then at

least exhausting it into wearied acceptance.

48. Also, some Advocates tend very often to be obstreperous,

even downright obnoxious. Courts and judges know how to deal

with such situations: selective deafness, a gentle chiding, something

14 New Zealand Law Society ‘Genuine Concerns About Cut and Paste’

at https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-827/genuine-concerns-about-cut-and-paste


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light-hearted and, if it gets too much, “Move along, Mr. So-and-So”.

Sometimes, a fleeting moment of good-natured levity defuses a

potentially volatile exchange. At other times, there is a passing

moment of waspishness. It happens on either side of the Bar. Both

sides know well to take these moments in their stride and to not

make over much of them. In live broadcasts, these moments are

likely to be taken wholly out of context and out of proportion. With

cameras omnipresent, many lawyers, perhaps tempted into seeing

this as a shot at some sort of twopenny publicity, would give free

rein to their thus far thankfully constrained histrionic tendencies.

That is unlikely to be very helpful from any persepctive.

49. Our Petitioners suggest that video archives would be valuable

resources. Perhaps; but resources for what, apart from needless

finger-pointing and catching imagined and imaginary slights? It

seems to us a colossal waste of time to be forced to sit through hours

and hours of tedious digital archives to find something that is likely

to be wholly irrelevant, given that the entire process is already

sufficiently open, and the result is out in plain view.

50. The talk of ‘greater transparency’ is meaningless. Courts do

not operate as star chambers, functioning in secret and behind

closed doors, except in those exceptional circumstances where the

law specifically allows an in camera proceeding or where the judge

exercises an inherent jurisdiction to so order it. As a general rule, all

Courts are open to all; that, as Dharmadhikari J points out, is the

settled mandate of the law. A person who has nothing whatever to

do with any given case is entitled to attend court and to observe

those proceedings for himself. The entire process is open to

everyone. Orders and judgments are in the public domain,


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unprotected by either copyright or password. Media reportage of

cases is permitted. In a number of recent cases, considered by the

media to be ‘high profile’, there have been instances of reportage

going out live from within the court room on social media: Twitter

and Facebook updates and so on. There is little that can be done

about this. But this much is also true: Courts are open to those who

trouble themselves to come to them, and who care to conduct themselves

with the decorum and solemnity required of judicial proceedings. It is one

thing to afford everyone a right to come to Court. It is quite another

to take that Court into everyone’s living room. The Constitutional

right to freedom of speech and expression, and the freedom of press

do not demand the admission of television crews into a courtroom.

Those Constitutional guarantees are sufficiently satisfied as long as

courts are freely open to all. The Petitions make a fundamental error

about the judicial process. This is a solemn, serious business, one

that requires care, caution and thought. It is most emphatically not

entertainment and nothing ought to be done that would even

minimally risk turning a court into a circus.

51. The comparison with Parliamentary proceedings is inapt.

Parliament is not in fact open to all in the same way our courts are.

Besides, this parallel is most curious and, in the context of the

presentation before us, self-defeating: we see little indication that

televising Parliamentary proceedings has had the kind of salutary

effect which the Petitioners claim to be an inevitable result of

recording and transmitting. Indeed, the ‘effect’ we see is precisely

the kind that so many courts and judges have deplored: a slice here,

a nugget there, and very often, not enough context.


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52. There is the very real danger of ‘splicing’. I use this term to

refer to a process of taking a truncated, out-of-context chunk of data

and presenting it with another, with an all-important omission in

between. This is the kind of thing that is necessary in television

programming perhaps, but which is likely to have unintended

repercussions and implications to a general lay public. This is

particularly so in trials. We, as judges and lawyers, know only too

well that trials are unpredictable. A trial’s path twists and turns

through its progression. A litigant’s fortunes may rise one day only

to flounder the next, or even a few minutes later. Lawyers and judges

are trained to take this in their stride, and to make no assessment till

the entire trial is complete and all the evidence is in. Then begins

the process of analysing that evidence, collating it, and presenting it

to the Judge in a particular fashion, of advocating a particular

interpretation, suggesting one particular sequence of causality as

preferrable to another, and cushioning all this in the framework of

what the law allows and does not allow. These are necessary

safeguards; and it is to prevent a ‘splicing’, a stripped-from-context

dissemination of nuggets of evidence yet in the process of being

gathered, that we in this Court do not allow the public availability of

evidence transcripts. Ensuring that the right to a fair and impartial

hearing or a trial is never compromised is the paramount

responsibility of a court. That responsibility is entirely

compromised, and those essential rights threatened and curtailed,

by allowing televising of our proceedings. The impact on parties,

witnesses and judges is bound to be severe.

53. There is one critical aspect that the Petitioners overlook: the

independence of the judiciary. This independence is not only from

executive interference. It also means, at a deeply personal level, that


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a judge must be unafraid to judge, and must be sequestered to the

extent possible from external influences. Far worse than a lazy judge

is a timid or intimidated judge; the former can at least once in a

while be goaded into making a determination. Possible public

pressure by daily coverage of court proceedings, followed by

commentaries (sometimes savagely mounted, unthinking and harsh)

only add to the burden of all judges. When I speak of judges, I speak

not only of those in the High Court and the Supreme Court. I speak,

too, of judges across the entire echelon of the hierarchical system:

magistrates, civil judges, district judges, judicial officers at every

level. Already these judges are under severe pressure. We all know

of many in our own judiciary who have suffered terribly when

handling senstive trials. We all know of some who lost their lives

because of the sheer strain. And we all know, too, of the kind of

pressures that are brought to bear on them and just how vulnerable

these judges are. These are, of course, pressures that attempt to

operate in the shadows. We combat them as best we can. I see no

reason to add to our judges’ burdens by subjecting them to more

vociferous and publicly unabashed influences.

54. Paragraph 42 of Mr. Nedumpara’s petition is indeed strangely

worded. It speaks of recording every utterance, every gesture during

the course of a hearing. I can think of little more reprehensible than

this. What, in short, the Petitioners seek is to strait-jacket the

proceedings in court for one and only one purpose: to develop a

weapon with which to pillory and terrorize judges and so to wholly

compromise the judicial decision-making process. What the

Petitions say to judges is this: “Watch out. You are on candid

camera. We will drag you before the public if you dare contradict

us.” All this, knowing that before the general public, and in public


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media, judges are the most voiceless in public service. We speak

through only through our judgments. We cannot defend them in

public forums. What the Petitioners seek is not the right to criticize

judges’ decisions — that is a right given to all — but the

opportunity to flog judges in the market square.

55. Neither Dharmadhikari J nor I suggest that there can never be

video recordings at all. We do not advocate any such absolute or

blanket ban. We just do not support these proposals for absolute and

compulsory recording; and we most resolutely do not approve of

any ‘live’ telecasts. In a given case, a video recording for that

particular case, or for one particular day, may be necessary. There is

no need to fear the technology itself. But it requires the consent of

all, lawyers, litigants and the Judge. Each one has a complete veto.

Sitting singly, I myself have allowed video recording in at least one

trial. I found it necessary in that case because the principal witness

had a speech impediment. Both sides agreed on the proposal. None

of those proceedings were, however, televised. The day’s recordings

were kept securely in Court and were not accessed except in Court.

The only use we made, together, was for reference, to correct the

day’s transcripts. In three other cases, I have used a video-

conferencing link to complete a long-delayed trial where the

witnesses in question were overseas and could not travel to India.

That, too, was by consent. In one custody dispute, I spoke with the

child over Skype. But what of it? None of this was with a view to any

of the so-called ‘benefits’ that Mr. Nedumpara and Mr. Chugani

extol before us. All of it was directed to a single end: the needs of

that particular case. Not the needs of the general public to be

entertained. These are Courts, not stages and sets and props from


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The Truman Show. This is a judicial proceeding of the utmost

solemnity, not The Hunger Games.

56. With no assurance or guarantee of a preservation of a day’s

proceeding, or of following a case ‘from gavel to gavel’, the dangers

of half-information, misinformation and misdirection are not to be

underestimated. This is precisely the failing of the Petitioners’

submissions before us. There is a clear difference between a litigant

or a lawyer or even a member of the public attending Court and of

the general public using courts as spectacles or arenas for

amusement, diversion and entertainment. The dangers we speak of

risk reducing the gravity, solemnity and dignity of these proceedings

into something bordering on the farcical, and even more deadly, the

ignominious. I see no reason to permit this.

57. I agree with Dharmadhikari, J. that both petitions are without

merit. These are the additional reasons why, in the operative order, I

joined him in dismissing both Petitions.

(G.S. PATEL, J.)


Documents

SRP/AGK Bombay High Court · 2016. 10. 14. · Bombay High Court Sunil S. Gupta v Dept Of Legal Affairs & Ors. With Indur Kartar Chhugani V State Of Maharashtra & Ors OSWP-1587-15-F.DOC