Central Idea

• The significance of live-streaming court proceedings as an extension of the ‘open justice’ and ‘open courts’ principle remains largely unrealized in India.
• Only nine out of the 25 High Courts in the country have implemented live streaming, while the Supreme Court restricts it to Constitutional cases.

What is live-streaming technology?

• At its core, streaming content is meant to help people attend events, expos, and experiences they cannot attend in person.
• Live streaming technology is how videos are streamed over the internet, live, in real-time, as they are being recorded.
• Live streaming technology is the internet’s response to live television broadcasts, with the most popular being news shows and sports.

Why discuss this?

• The Supreme Court emphasized the need for live streaming in district courts and High Courts as these are the courts where most citizens seek justice.
• Time and resource constraints, as well as the inability to travel long distances, limit public access to court hearings.
• Videoconferencing became essential since the COVID-19 pandemic, as physical hearings were not possible.

Early Adopters

• The Gujarat HC pioneered live streaming in October 2020, streaming proceedings on YouTube as an experiment.
• Other HCs, such as Karnataka and Meghalaya, followed with varying degrees of success.
• The Gujarat HC’s YouTube channel gained 1.24 lakh subscribers and 1.9 crore views.

Existing Restrictions

• Model Rules for Live Streaming and Recording of Court Proceedings: These exclude certain case categories from live streaming, including matrimonial matters, child adoption and custody, sexual offences, child sexual abuse, and juvenile cases.
• Broadcasting rights issue: The Delhi High Court notified rules for live streaming proceedings but imposed restrictions such as a ban on reproducing or transmitting audio-visual recordings.

Significance of live streaming

• Instilling Faith in the Judiciary: Allowing ordinary people to view the workings of the highest court without barriers builds faith in the judiciary.
• Empowering the Masses: Live streaming enables the legal system to empower the masses and develop an informed citizenry.
• Respect for Rule of Law: Understanding the importance of the rule of law and how the judiciary protects the rights of marginalized sections of society.
• Living up to Constitutional Expectations: Live streaming aligns with public interest and the preservation of constitutional Article 19 and 21.
• Increased Transparency: Encourages the principle of open court, reduces reliance on second-hand information, and allows the public’s right to know.
• Elevating Legal Standards: Lawyers become better prepared, refrain from irresponsible remarks, and take justice delivery more seriously.
• Level Playing Field: Provides equal opportunities for younger lawyers to showcase their skills and competence.
• Academic Advancement: Inspires law students and encourages legal research on the functioning of the judiciary and the legal profession.
• Easy Accessibility: Eliminates the need for physical presence, allowing litigants to access proceedings from anywhere.

Issues with such policy

• Contempt of Court: Existing video clips of court proceedings on social media platforms often lack context and sensationalize events, potentially undermining the dignity of the court.
• Disinformation and Sensationalism: There are concerns that misuse or selective use of live streaming content may contribute to the spread of disinformation among the public.
• Unnecessary Activism: Increased visibility through live streaming could lead to justices behaving like politicians, seeking individual exposure rather than focusing solely on justice.

Physical barriers for it

• Internet Connectivity: Issues related to internet connectivity may hinder seamless live streaming, requiring attention for reliable access to court proceedings.
• Adequate Infrastructure: Provision of well-equipped spaces where lawyers can effectively present their cases is crucial for a smooth transition to live-streamed proceedings.
• Awareness and Training: Judges, court staff, and lawyers may lack familiarity with digital technology and its benefits. Efforts should be made to raise awareness and provide comprehensive training to ensure their proficiency.

Global examples

• Several countries, including the United States, Brazil, the United Kingdom, Canada, and China, have implemented live streaming of court proceedings in various formats.
• Live streaming formats include audio recordings (US), video recordings streamed on television (Brazil), video streaming on court websites (UK, Canada), and live streaming from trial courts up to the supreme court (China).

Way Forward

To promote open justice and improve access to justice, the following steps are recommended:

• Implementation of live streaming in all courtrooms of the Supreme Court and across all High Courts and district courts.
• Ensuring adequate infrastructure for videoconferencing and live streaming beyond the pandemic.
• Reviewing and revising restrictions on live streaming to strike a balance between transparency and privacy concerns.
• Conducting awareness campaigns to educate the public about the availability and benefits of live-streamed court proceedings.

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Central Idea

Recusals by judges have been a frequent occurrence in recent weeks, raising important questions about the circumstances under which judges should recuse themselves, the need for recording reasons for recusal, and the reliance on individual judges’ discretion.

What is Recusal?

• Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
• Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
• For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
• Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
• A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

Reasons for Judicial Recusal

• Conflict of interest: Recusal often occurs when a judge has a direct conflict of interest or a prior association with the parties involved in a case. For instance, if a judge holds stakes in a company involved in the case, it would be reasonable to recuse themselves.
• Earlier difference of opinion: Similarly, if the judge previously represented one of the parties in a case, recusal may be necessary.
• Prevent bias: Some judges may recuse themselves based on apprehension of bias, while others may refuse to withdraw, considering the potential damage to the institution.
• Absence of Codified Rules: India currently lacks codified rules specifically governing recusals, but the Supreme Court has addressed the issue through various judgments.

Procedure for Recusal

• Automatic and Plea-based Recusal: Recusal can happen automatically when a judge recognizes a conflict of interest or when a party raises a plea for recusal due to bias or personal interest.
• Judge’s Discretion: The decision to recuse rests solely on the conscience and discretion of the judge; no party can compel a judge to withdraw.
• Transfer of the Case: When a judge recuses, the case is transferred to the Chief Justice, who reassigns it to an alternate bench to ensure the continuity of proceedings.

Recording Reasons for Recusal

• Responsibility of Judges: Since there are no statutory rules, judges are responsible for recording their reasons for recusal.
• Oral or Written Disclosure: Reasons for recusal can be specified orally in open court or through a written order, or they may remain undisclosed.

Criticism

• Lack of transparency: This regarding reasons for recusal has faced criticism, particularly when mass recusals occur in sensitive cases.
• Motives undisclosed: Some judgments have argued for the need to indicate reasons to avoid attributing motives to recusals, while others express concerns that specifying reasons could lead to challenges and hinder the recusal process.
• Inevitable delay: Recusal inevitably leads to delays in the proceedings as the case is transferred back to the Chief Justice, who must assign it to a fresh bench.

Past Supreme Court Rules on Recusal

• Factors for Impartiality: The Supreme Court has established various factors to determine the impartiality of a judge in previous judgments.
• Reasonableness of Apprehension: The reasonableness of the party’s apprehension of bias is a crucial consideration when deciding whether recusal is necessary.
• Definition of Judicial Bias: Judicial bias is defined as a predisposition that compromises a judge’s impartiality.
• Real Danger Test: Pecuniary interests automatically disqualify a judge, while other cases require applying the “real danger” test to evaluate the possibility of bias.

Issues with Recusal

• Abdication of Duty: Recusal has been viewed as a potential abdication of a judge’s duty, raising concerns about maintaining institutional civility while fulfilling the independent role of judges as adjudicators.
• Importance of Providing Reasons: Justice Kurian Joseph, in his separate opinion in the 2015 National Judicial Appointments Commission (NJAC) judgment, emphasized the importance of judges providing reasons for recusal to enhance transparency.
• Constitutional Duty for Transparency: Indicating reasons for recusal is a constitutional duty, reflecting the need for judges to be transparent and accountable.

Practices in Foreign Jurisdictions

• United States: It has well-defined laws and codes that explicitly detail grounds for recusal, such as financial interests, prior involvement as a lawyer or witness, and relationships with parties.
• United Kingdom: It has adopted the “real danger” test to disqualify judges based on substantive evidence of bias, although this approach has faced criticism.

Importance of Appearance of Bias

• The European Convention of Human Rights emphasizes the significance of the “appearance of bias” to ensure fairness from the perspective of a reasonable observer.

Way Forward

• To ensure fairness and maintain public trust in the justice system, it is crucial to establish clear guidelines and rules for recusal in India.
• Codifying principles, requiring judges to record reasons for recusal, and promoting transparency can address concerns about bias and uphold the integrity of the judiciary.
• Learning from foreign jurisdictions, such as studying the comprehensive recusal laws in the United States, can provide valuable insights for developing a robust framework for recusal in India.
• Enhancing transparency and accountability in the recusal process will contribute to a stronger and more trusted judicial system.

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