Subject: Judiciary

Attorney General of India has pushed for live-streaming court proceedings to make hearings accessible to all. But CJI sounded a cautionary note, saying it was susceptible to “abuses.”

Why such demands?

• In a first in India, the Gujarat High Court has begun live streaming of Court Proceedings on YouTube.
• The issue of live-streaming came up as a Special Bench led by the CJI was taking stock of the virtual court system initiated soon after the pandemic lockdown.

Live-streaming of Court

• Justice Chandrachud was one of the three judges on the Bench that gave the verdict on live-streaming in September 2018.
• In fact, he had noted in his separate opinion that live-streaming of proceedings would be the true realization of the “open court system.”
• His suggestions were later adopted as guidelines in the September 2018 judgment.

Why there should be live-streaming?

• Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
• Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
• Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
• More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. 
• This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
• Academic help: Live streaming may also be a help for academic purposes.

Issues with live-courts

The Parliamentary Standing Committee (PSC) of the Department of Personnel, Public Grievances and Law and Justice have tabled its report on the functioning of Virtual Courts and Digitization of Justice Delivery in Parliament.

Following are the four key considerations and recommendations of the committee as far as mainstreaming of virtual courts is concerned:

(1) The question of access:

• A large number of litigants and advocates lack internet connectivity and requisite infrastructure and means to participate in virtual hearings and the process. This has serious implications.
• The obvious one being that a large chunk of our citizenry is vulnerable to being excluded from the process of justice delivery owing to factors beyond their control.
• The committee also opined that the judiciary considers solutions such as mobile video conferencing facilities to allow for meaningful participation from those living in remote geographies.

(2) The degree of comfort:

• A highly underrated but equally consequential factor is whether everyone, even if access to reliable internet connectivity is universal, is comfortable and well versed with the new tools and mediums of justice delivery.
• Big, well-to-do law firms and advocates in urban areas would face no issues as compared to those participants in rural areas given the digital divide.

(3) The idea of open courts itself:

• Virtual courts allegedly threaten the constitutionality of Court proceedings and undermine the importance of Rule of law which forms a part of the basic structure of the Constitution.
• Expressing concern over the opaqueness of such hearings, critics state that virtual courts are antithetical to the open court system given the limited access that they allow for.

(4) The question of Privacy and Data Security:

• This is where the report makes some interesting and innovative suggestions vital to the performance of any digital justice delivery mechanism.
• It also took note of the fact that most virtual court proceedings in India currently take place using third-party software or platforms and a few of them have already been rejected earlier on grounds of being unsafe to use.
• The committee noted how courts across the world have had instances of intrusion and data privacy or security concerns while adapting to an entirely virtual mode of conducting hearings.

Still, digital records are necessary

• Litigants depend on the information provided by lawyers about what has transpired during the course of hearings.
• When the description of cases is accurate and comprehensive; it serves the course of open justice.
• Again, if a report on a judicial hearing is inaccurate, it impedes the public’s right to know.

Best examples

• Internationally, constitutional court proceedings are recorded in some form or the other.
• In Australia, proceedings are recorded and posted on the high court’s website.
• Proceedings of the Supreme Courts of Brazil, Canada, England and Germany are broadcast live.
• The Supreme Court of the US does not permit video recording, but oral arguments are recorded, transcribed, and available publicly.
• And democracies aside, in China, court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

Significance of open-courts

• India stands alone amongst leading constitutional democracies in not maintaining audio or video recordings or even a transcript of court proceedings.
• Court hearings can be turning points in the life of a nation: ADM Jabalpur comes readily to mind. More recently, there is any number of cases where the Supreme Court’s judgments have changed citizens’ lives.
• Ayodhya, Aadhaar, Section 377, Sabarimala, NRC and the triple talaq judgments are among them.

Various moves for accessibility

• Over the last few years, the Supreme Court has taken steps to make justice more accessible. The Court started providing vernacular translations of its judgments.
• Non-accredited journalists were permitted to live-tweet court proceedings. During the lockdown, journalists have been permitted to view virtual court proceedings in real-time.

Way forward

• There should be live-streaming cases of constitutional and national importance as a pilot project, including Constitution Bench cases.
• Matrimonial cases and those involving national security could be excluded.
• There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast to ensure any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
• The judiciary must also employ a press officer to liaise with the media, and issue simultaneously one or two page summaries of its judgments to facilitate greater public understanding.
• There has to be a greater reliance on written briefs and the significance accorded to them, time limits for oral arguments, and a greater emphasis on preparation in advance.

Kesavananda Bharati (80), the sole unwitting petitioner in the historic Fundamental Rights case which prevented the nation from slipping into a totalitarian regime has passed away.

Who was Kesavananda Bharati?

• Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961.
• He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970.

What was his case?

• A 13-judge bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.
• The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges were stitched together by then CJI SM Sikri on the eve of his retirement.
• However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna.

What was the case about?

• The case was primarily about the extent of Parliament’s power to amend the Constitution.
• First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
• Second, the court was deciding the constitutional validity of several other amendments.
• Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
• The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.
• Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

What did the court decide?

• In its majority ruling, the court held that fundamental rights cannot be taken away by amending them.
• While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
• However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.
• The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
• Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.

What is the basic structure doctrine?

• The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
• The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes.
• Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
• In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.
• What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as the basic structure, the list is not exhaustive.

What was the fallout of the verdict?

• Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive.
• Then government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed CJI after Justice Sikri.
• The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.
• But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of modern democracy.

Significance of the Judgement

• The judgment introduced the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism.
• The verdict upheld the power of the Supreme Court to judicially review laws of Parliament.
• It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.
• The Emergency was proclaimed shortly after the judgment was delivered on April 24, 1973.
• It proved timely and thwarted many an attempt on democracy and dignity of an individual during those dark years.

Attorney General of India has refused consent to a plea to initiate criminal contempt action against an actor for “scandalizing” the Supreme Court.

Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

What is the case for prior approval in Contempt Cases?

• The prior consent in writing of the Attorney General is required for the Supreme Court to initiate criminal contempt action in a case a/c to the Contempt of Court Act, 1971.
• AGI consent in a form of check on the much-debated suo-motu power of criminal contempt.

Attorney General of India (AGI)

• The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
• They can be said to be the advocate from the government’s side.
• They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
• They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

Functions and duties

• The AGI is necessary for advising the Government of India on legal matters referred to them.
• They also perform other legal duties assigned to them by the President.
• The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
• The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
• They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
• The AG is assisted by a Solicitor General and four Additional Solicitors General.

Powers

• The AG can accept briefs but cannot appear against the Government.
• They cannot defend an accused in the criminal proceedings and accept the directorship of a company without the permission of the Government.
• The AG is to be consulted only in legal matters of real importance and only after the Ministry of Law has been consulted.
• All references to the AG are made by the Law Ministry.

Limitations

The AG:

• should not advise or hold a brief against the Government of India
• should not defend accused persons in criminal cases without the permission of the government of India
• should not accept appointment as a director in any company without the permission of the government

Global precedence

• Unlike the Attorney General of the United States, the AGI does not have any executive authority.
• Those functions are performed by the Law Minister of India.
• Also, the AG is not a government servant and is not debarred from private legal practice.

In the criticism against the Supreme Court’s ruling that held advocate Prashant Bhushan guilty of contempt of court, his counsel has invoked the ‘Mulgaonkar Principles’, urging the court to show restraint.

Try this MCQ:

Q. The Mulgaonkar principles recently seen in news are related to:

Diplomacy/ Economy/ Judiciary/ Environment

The Mulgaonkar principles

• S Mulgaonkar v Unknown (1978) is a case that led to a landmark ruling on the subject of contempt.
• By a 2:1 majority, the court held Mulgaonkar not guilty of contempt although the same Bench had initiated the proceedings.
• Justices P Kailasam and Krishna Iyer formed the majority going against then CJI M H Beg.
• Justice Iyer’s counsel of caution in exercising the contempt jurisdiction came to be called the Mulgaonkar principles.

What was the case about?

• An article by A G Noorani in the newspaper about certain judicial decisions during the Emergency period, especially the Habeas Corpus case, had displeased then CJI Beg.
• The Habeas Corpus case, often referred to as the “Supreme Court’s darkest hour” upheld the detention law, citing that even the right to life can be suspended during an emergency.
• Justices A N Ray, Beg, Y V Chandrachud and P N Bhagwati formed the majority while Justice H R Khanna was the sole dissenter.

What did the ruling say?

• The first rule in the branch of power is a “wise economy of use by the Court of this branch of its jurisdiction”.
• The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process.
• The court is willing to ignore, by a majestic liberalism, trifling and venial offenses-the dogs may bark, the caravan will pass.
• The court will not be prompted to act as a result of an easy irritability.