Live Tweeting Court Proceedings: Public Service or Interference?

A stream of live tweets, posted over the course of six days, recently went viral in the Indian Twitterverse. Surprisingly, these tweets had nothing to do with Shah Rukh Khan or Baahubali or the IPL or some ridiculous reality TV star or farragoes or any of the other ludicrous things that the internet in its wisdom decides to make viral.

What they related to was far more unexpected – the constitutionality of a tax law amendment. More specifically, the recent case before the Supreme Court challenging the amendment to the Income Tax Act which effectively requires you to have an Aadhaar card to file your tax returns.

Basically, Supreme Court lawyers Gautam Bhatia and Prasanna S took six days of complex arguments on constitutional and taxation law, argued by some of India's most eminent lawyers, and tweeted concise, understandable summaries of these in real time.

Mr Datar: Darkness does not come all at once. It is in the twilight that we must be most vigilant, or we are lost.

Thread on Aadhaar/PAN, Day 5: Arghya Sengupta argued for the Union of India. Mr Shyam Divan replied.
A few points to follow: https://t.co/5PnG1mCdsZ

Today, Supreme Court reserved judgment in the Aadhaar/PAN linkage case. Summary of Day 6 hearing below.
A quick recap of what's to come now: https://t.co/Jn8t2IDaXj

Justice Sikri: Earlier they can deny benefits without aadhaar. Will they now say you need not pay tax? (Laughs allround).

An Unwanted Interference?

One would think that this would unquestionably be a public good, but of course there was criticism of their efforts, this being Twitter after all. Some critics pointed out that live tweeting the arguments raised by the parties would lead to the public pre-judging issues which could adversely impact the judiciary's independence when making decisions. Others pointed out that the public could start forming opinions based on those arguments that could be contrary to the decision of the court, thereby undermining the judiciary.

Still others pointed out that such a process eroded the sanctity of court proceedings.

These concerns are mostly overblown, and show scant regard for the constitutional right to free speech that allows people to form opinions they want. They also ignore the fact that the judiciary has to deal with pre-judging of issues already and live tweeting wouldn't significantly change this. And of course, the court can regulate things like this if they feel it affects their functioning.

Is it Against the Law?

Live tweeting from courtrooms is not a brand new phenomenon, not just abroad, but also in India. In the UK, it was initially only allowed if a special application was made to the relevant court. However, since 2011, there have been no restrictions. In the US, a number of judges have allowed it, although many courts have restricted it under laws against broadcasting from courts, and others have precluded it altogether by not allowing electronic devices into courtrooms.

In India, television journalists have live tweeted from landmark cases, including the Bombay High Court's rejection of the CBFC cuts to Udta Punjab in 2016, and Shakti Mills gangrape sentencing hearing in 2014. Restrictions against live tweeting exist in the form of rules against allowing electronic devices in courtrooms.

The Bombay High Court in February 2017 introduced such a ban for everyone in court except lawyers (who needed to access the court's SMS alerts feature), in line with the Supreme Court's rules. As a result, live tweeting mentioned above would no longer be possible.

Advocates, however, can continue to take their phones into courtrooms and, if so inclined, live tweet proceedings.

What About Live Streaming?

Video streaming and recording is a different matter entirely. Certain courts in the USA have introduced live streaming of cases, and audio recordings of cases are now also available, even of their Supreme Court. However, in India, video and audio recordings are not permitted in the courts.

A recent pilot project has been ordered by the Supreme Court of India to have some courts record proceedings on video (no audio), but this is still in its infancy. Any attempts to record or live stream proceedings in an Indian court (or even take photographs of proceedings) would be against the law, a similar position to that in the United Kingdom.

Benefits of Live Tweeting

Live tweeting's benefits can all broadly be grouped under the umbrella of providing better access to information.

First, it provides the public with insight into the functioning of the court and our legal system, something which they would normally not gain. The way a court functions is not as it is depicted in movies like Pink or TV shows like ‘Suits', and understanding how cases actually operate in terms of their procedure is immensely valuable.

Secondly, live tweeting can help inform us about the substance of important contemporary issues. Technically in India, most proceedings are not in-camera: hence the entire details of the case can be reported, and proceedings are also meant to be open to the general public.

In practice, however, access to the courts is severely restricted through security measures, and only lawyers and parties to cases actually get to visit the court. Judgements and orders do not consistently record the arguments of parties in detail, which means that unless one is present in the courtroom, it is almost impossible to know what exactly the parties argued.

Now this may seem irrelevant since at the end of the day the court's decision is a reflection of the law. However, it gains tremendous importance when the government is a party. For instance, in the case about Aadhaar and tax returns, the government position was openly stated to be, for the very first time, that Aadhar is to be a mandatory scheme. This, after years of claiming it was voluntary, including before the Supreme Court in the past.

An Opportunity for Better Legal Reporting?

Thirdly, live tweeting can also lead to better quality of reporting about cases. Practicing lawyers don't have time to write reports about cases on a daily basis when out of court.

The court reporters who do write or broadcast such reports don't normally have a legal background, which leads to inaccurate reporting of cases – a typical error is the quotation of offhand statements by judges as decisions or orders of the courts. Consequently, their readers/viewers are often severely misinformed about major legal developments, even those in which they are interested.

But a lawyer present in the court may have the time to tweet out descriptions of the arguments at that time. And in general, as they would understand the issues better, their reporting would be more accurate. Gautam Bhatia is an excellent example. Not only had he assisted with drafting the petitioner's arguments, he has studied law at NLS Bangalore, Oxford and Yale, written a book about free speech, and runs a blog on Indian constitutional law.

Pitfalls to Avoid

This is not to say that live tweeting is a perfect thing without any potential flaws. As the value of live tweeting relates to its ability to better inform us, the benefit depends on the person at the other end of the keyboard. Whether this be a lawyer (as would be the case in most major courts) or a journalist, if the tweeter doesn't understand the issues, their posts could not only fail to inform the public, but also actively misinform them, causing more damage.

Just take the reporting on the Kulbhushan Jadav issue recently – most news outlets termed this a stay by the ICJ (which would have binding value), when the reality was that the President of the ICJ had only written to Pakistan asking them not to do anything till India's request to the ICJ is heard.

Apart from incompetence, there is also the possibility of vested interests intentionally skewing the public debate about important contemporary issues. As we have seen in the internet of today, there is no shortage of partisan trolls who will stop at nothing to push their agenda. If such people began to live tweet, we could see dangerous mischaracterisation of the arguments of parties, whether the government or private persons.

A certain degree of regulation by the courts may be required to ensure these pitfalls are avoided, but on balance, the tremendous benefits of live tweeting should be put to good use.

Disclosure: I am friends with Gautam and certain other lawyers who see value in tweeting proceedings of courts.

(Vakasha Sachdev is a lawyer qualified to practice in India, and England and Wales, and can be reached @VakashaS. He is currently working with Rao Law Chambers, a boutique tax advisory firm in Bengaluru. This is an opinion piece and the views expressed above are the author's own The Quint neither endorses nor is responsible for the same.)

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