The case for live-streaming apex court proceedings in Bangladesh

'Justice should not only be done, but should manifestly and undoubtedly be seen to be done' - this principle of open justice is universally fundamental in legal systems. The court is open to the public in principle, but in practice, very few people have the time or opportunity to observe court proceedings in person.

The primary reason behind this is the schedule of the court proceedings, as they take place during office hours in workdays. As a result, many people have to base their views of the judicial process on dramatised portrayals, shown on televisions or in films.

But in digital Bangladesh, it should be easier for people to access information on court proceedings with the range of technology presently available.

Cases reaching the Appellate Division of the Supreme Court of Bangladesh, which is the apex court, mainly deal with legal issues and do not involve taking new evidence from witnesses. As a result, its proceedings are short and comprehensive.

Broadcasting those proceedings will not only demystify the judicial process to the masses, but also strengthen the core of our democracy.

A representative democracy thrives on keeping its citizens well-informed. The people of Bangladesh have a right to be informed about the institutions that serve them. Right to access information is an inalienable part of freedom of thought and conscience, and of speech guaranteed by Article 39 of the Constitution of Bangladesh.

Although it is not expressly cited in the Constitution, it is mentioned in the Preamble of the Right to Information Act 2009 that the right to access information is an inalienable part of the fundamental right of freedom of expression.

When a judge pronounces a judgement, he is a functionary in the judicial wing of the state, performing a function concerning rights of the public, and therefore, it is appropriate for a judge to be filmed.

In an open and transparent judicial system, there should be no room for difficulty in broadcasting the judicial process. However, cases related to matrimonial disputes, custody of children, sexual offences, gender violence, child abuse, etc have to be excluded from ambit of live-streaming.

There are already precedents of recording and televising or webcasting judicial proceedings of the apex courts across the world, to inspire public confidence and respect in the judiciary process. 

When the Supreme Court of the United Kingdom was established in 2009, one of the key objectives was to make its proceedings accessible to the public. Through Section 47 of the Constitutional Reform Act, 2005, its proceedings are routinely filmed and broadcasted by the main national broadcasters such as the BBC.

Currently, all hearings in the UK's Supreme Court can be viewed online anywhere around the world through the live-stream available on its official website.

The Supreme Court of Canada has opted for webcast. Video recordings of suitable court proceedings are available on the website of the institution. Meanwhile, the High Court of Australia publishes audio-visual recordings of full court hearings on its website. 

The Chief Justice of India, Venkata Ramana, has recently inaugurated the launch of live-streaming of proceedings at the High Court of Gujarat. He announced that it was high time to "widen" the gates of the already "open" court system to demystify the justice delivery mechanism. 

He added that formalising live-streaming of court proceedings would be crucial for dissemination of information, since the spread of information is sacrosanct to free speech.

The Chief Justice of India, saying "sunlight is the best disinfectant", pointed out that transparency is a time-honoured principle when it comes to the country's judicial process and live streaming court proceedings will bring more accountability and further the rule of law. 

However, he mentioned that live-streaming can be a double-edged sword as judges will constantly feel the pressure of public scrutiny. But he added, "A judge cannot be swayed by popular opinion." He also instructed lawyers to watch over their clients' interests, rather than compete for publicity.

The Indian Supreme Court's E-Committee is currently working with the Department of Justice to spread this initiative to other states. A draft of rules for recording and live-streaming court proceedings, with a 10-minute delay, have already been released.

But in Bangladesh, recording and publishing court proceedings would amount to contempt of court, and taking movie photographs is prohibited under Supreme Court of Bangladesh (High Court Division) Rules-1973. 

Article 108 of the Constitution of Bangladesh provides that the Supreme Court shall be a court of record, and accordingly, the records of court are to be perpetually preserved. 

The virtual court proceedings of both the divisions of Supreme Court of Bangladesh have been recorded for the purpose of preserving it, since the promulgation of "Adalat Kartrik Tottho-Projukti Byabohar" Ordinance and later Act, 2020. However, this is not done in physical court proceedings.

It is, therefore, appropriate to allow recording of apex court proceedings to be webcast,  after a period of running pilot-programming. 

At the same time, strict measures have to be adopted to prevent sensationalism of court proceedings for media entertainment, which could undermine the administration of justice, the dignity and majesty of the court hearing and/or impinge upon any rights of the litigants or witnesses.

Joydeepta Deb Choudhury is a Barrister-at-Law and Advocate at the District and Sessions Judge Court. Her email address is: jndebchoudhury@gmail.com. 

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.