In a path breaking, landmark and an unprecedented Order, the Delhi High Court has agrred on our Audio-Record Writ

Petition.
by Kv Dhananjay on Monday, February 28, 2011 at 3:48pm

Dear Friends I would count this particular Order as a milestone in the judicial history of my country. And I am happy to say here that I am thoroughly pleased to be the lawyer who sought it. And I share here, my pleasure with the petitioner, Sri Deepak Khosla. Sri Deepak Khosla, a businessman from Noida, Uttar Pradesh waged a lone battle against a mighty industrialist from Delhi in the High Court of Delhi and very soon, saw himself argue more than 40 different matters in the Delhi High Court. We had not known each other until late 2009. In early 2009, I was arguing the constitutionality of the DDA Housing Scheme 2008 before the Delhi High Court. At the same time, I had written to the Honble Chief Justice of Delhi High Court, Sri A.P.Shah on the need for audio-recording judicial proceedings in which I would be arguing. Fortunately, this request of mine came to be well covered by the media. Sri Krishnadas Rajagopal of Indian Express reported and analysed the scope of that request. Here:http://www.indianexpress.com/news/lawyer-wants-to-tapeproceedings-help-client-follow-case/442913/0 Very soon thereafter, Sri Deepak Khosla tracked me and, in late 2009, we filed a Writ Petition No.12787 of 2009 (Deepak Khosla v. Union of India And Ors) (Advocate on Record for the Petitioner K.V.Dhananjay). A copy of the said Writ Petition can be accessed at:http://www.scribd.com/doc/21857775/Writ-Petition-Seeking-Audiorecord Smt.Kanu Sarda at IANS (then) reported and analysed the development. Here:http://www.thaindian.com/newsportal/uncategorized/lawyer-seeksaudio-recording-of-court-proceedings_100267450.html Just before we filed this petition, as a matter of general concern, we spoke to some 25 or so senior and reputed lawyers on the substance of our Writ Petition. Almost instantly, we were told this much:

You must be out of your minds. You want to file a Writ Petition in the Delhi High Court attacking the very Delhi High Court and asking that it should not interfere while you go ahead with audio recording your cases. If you still want to go ahead and file such a petition, be prepared to be dismissed at the very outset and to pay huge costs. Our advice would be this simply file a PIL and stop there. If the lord in the heavens were to smile on you. Fortunately, neither I nor Sri Deepak Khosla took any of the reputed counsel seriously. With a smile, we went about our work. On 06-Nov2009, notice on our petition came to be issued: Smt.Kanu Sarda at IANS (then) reported and stated the significance of this development. Here:http://headlinesindia.mapsofindia.com/judiciary/highcourts/governments-view-sought-on-plea-to-record-court-hearings27039.html A number of interesting events took place in this case. Of course, some of these events did elicit considerable attention. Sri Harish V Nair at the Hindustan Times: Delhi HC chooses to stay Off the Record.http://www.hindustantimes.com/News-Feed/newdelhi/DelhiHC-chooses-to-stay-off-the-record/Article1-528959.aspx Sri Abhinav Garg at Times of India similarly reported on the same incident covered in the story above. Unfortunately, the link to the story is not available. Finally, on 25-Feb-2011, the proceedings in the Writ Petition resulted in a landmark Order by Honble Justice S.N.Dhingra. The Order is attached and is also here:https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&sr cid=0B1fh2RGik6ynNTYwMDA5OWUtYTg5ZC00YTcxLTg3ZDMtN2J kNjM4NWM1Yjk1&hl=en Record of Proceedings: Morning of 25-Feb-2010: Before Honble Justice S.N.Dhingra Court Hall No.35

Delhi High Court K.V.Dhananjay (Counsel for Petitioner): Your Lordship, on the previous occasion, this Honble Court had instructed the counsel for the Delhi High Court (Delhi High Court for short) to furnish us with the set of judgments they had brought forth to the Court. In fact, knowing fully well that the arguments were already concluded, they sought to revive the case by bringing forth a fresh set of judgments. The set given to us did not highlight the relevant paragraphs. So, we had stated that unless they indicate the relevance of these judgments, we would not be in a position to meet their argument which argument has been very evasive so far. Finally, a month and a half later, they have turned over their judgments. It is so unfortunate that the judgments they have cited to this court have not the slightest connection to this case. In some cases, they have relied on dissenting portions of a judgment. Some of these cases have also been overruled implicitly. We have been struggling to discover the relevance of these judgments to the case at hand. After spending considerable time on these judgments, I must say that these judgments are deliberately designed to waste the time of this Honble Court. Court: Let us resume arguments in the afternoon. 3.30 pm. Sri Rajiv Bansal (Counsel for Delhi High Court): Your Lordship, this petition is wholly misconceived and they are very cleverly seeking a relief to which they are not entitled. They do not know the ramifications of allowing recording of court proceedings. It is a highly complex problem. A Writ is to be issued only for enforcement of an existing right. They have no right to audio record proceedings and my Lord should dismiss this case as misconceived. The Delhi High Court knows its obligations. In fact, it is the leading protector of citizens rights be its judgments on RTI or other issues. There can be no complaint howsoever to the manner in which judicial proceedings are currently conducted in this court or for that matter, in this country. My learned friend should recognise that we have initiated the greatest amount of reform. Notwithstanding all the problems that our country has, 50% of our population still is honest and noncorrupt K.V.Dhananjay: The Delhi High Court just made an excellent argument against reform. All the oppressive regimes that are reluctantly stepping down around the world might take some delight in these arguments. Still,

there is no honesty whatsoever in their argument. Audio recording technology has been known for well over 70 years. Currently, an audio recorder will fit in to the palm of a lawyer and the Delhi High Court is saying that it should not be bothered to consider the desirability of providing for audio recording its court proceedings. For the most recent year, the Delhi High Court spent 42 crores on various expenses and yet, it chose to not spend even a tiny part of it to equip court rooms with audio recording equipment. So, the Delhi High Court has chosen to disregard the benefit of an audio recording facility. So, we are only saying that we take no objection to the Courts arbitrary decision to not facilitate audio recording. However, we want to compensate for the Courts failure to reform itself we want to record ourselves and we dont want officers of the Court to stop us. Our petition is this simple. P.K.Bansal: Your Lordship, the situation in United Kingdom and United States is such that. K.V.Dhananjay: It is a surprise that the respondent is only considering United Kingdom and United States. The richest countries of the world record their proceedings. The poorest countries of the world record their proceedings. The most corrupt countries of the world record their proceedings. The least corrupt countries of the world record their proceedings. I am at a loss to place India here. P.K.Bansal: Is there any other country with the kind of population we have? K.V.Dhananjay: Forget the population for a moment. We are a trillion US Dollar economy. In terms of GDP, we are the 10th largest country in the world and I would suggest that we stop wallowing in self pity. P.K.Bansal: My learned friend should consider that today, my wife and children can walk safely on the streets because 50% of the country is still not corrupt. Court: Honble Justice S.N.Dhingra: What kind of statement is this? What about the balance 50%? Is not corruption destroying this country? Lets say, you lose your purse in a public bus. And you will go to a police station and give your complaint by describing in sufficient detail, your purse, the content of it, the route of the bus, the registration number of the bus, the date, place and time of loss. Do not tell them your position. Come

back and tell me if the Police will register your complaint without a phone call from someone or the other. Corruption is reaching intolerable levels and I think, we should stop taking satisfaction with the way things are. K.V.Dhananjay: Your Lordship, so long as we have jurists of your stature, we stand protected and hope will never die. Court: Honble Justice S.N.Dhingra: I am not a jurist. I am an ordinary citizen of this country. K.V.Dhananjay: Your Lordship, unfortunately, transparency and accountability are not yet pressing concerns for the Delhi High Court and I am seeking your Lordships intervention. Day in and day out, hundreds of petitions are filed in this court by the litigants by claiming that some Government agency has acted in an arbitrary manner and that their rights are violated. Often, this Court intervenes. Should not this institution that is ever eager to check arbitrariness in Government actions itself consider audio recording its proceedings? I have the greatest respect for the Delhi High Court and precisely because we take immense pride in this institution, we have been asking for more reform. Honble Justice S.N.Dhingra proceeds to dictate his judgment. When finished, we thanked the heavens for what had become of the Order. It is attached. Excerpt: I consider that it is high time that the Court and State should consider introduction of authenticated audio/video recording of the proceedings in all Courts more specifically in District Courts. In my view audio and video recording shall help smooth functioning of the District Courts where the District Judges and Civil Judges work in adverse circumstances and do not have power of contempt. When they refer matters of contempt to the High Court pleas are taken that incident had not happened or a manipulated version was put forward. This will also discipline not only the judges who do not come to the Courts in time but will also discipline the advocates and litigants who many a times try to obtain order from the Court either by show of forceI therefore consider that it is high time that High Court should consider the introduction of such measures of audio/video recording in trial courts as well in this Court.

Since issue involved is not of recording in one particular court but the issue involved is of recording of proceedings of all those cases where petitioner is a party and these cases may be before any Court, the issue will have to be decided by a larger bench of the Court on both legal as well as administrative side. Necessary direction can be issued only by the larger bench after considering issue as to what paraphernalia would be needed and how the recording is to be authenticated, if it is to be allowed. Honble the Chief Justice is requested to constitute a larger bench for considering this issue as well as all other connected issues concerning authenticating recording of audio/video recordings, infrastructure required for that etc. Mr.Deepak Khoslas petition shall remain pending till the larger bench takes decision and Mr.Deepak Khoslas right into the recording proceedings for his personal use cannot be decided by this bench for itself. The matter be put up before Honble the Chief Justice by 4th March 2011.

SIGNIFICANCE OF THIS ORDER: This marks the first time that a Judge of a Constitutional Court of Justice in this country (High Court or the Supreme Court) has passed a judicial Order expressing the imminent need for audio/video recording judicial proceedings. Also, the fact that the learned Single Judge has referred this very case to a larger Bench of the High Court itself indicates that the right to an electronic record of a judicial proceeding is a substantial right of a litigant. This Order marks a revolutionary leap from the manner in which proceedings were conducted in our courts until now rely upon human memory for all things that take place inside Court room. Of course, those who have always sought greater transparency and accountability in our Court procedures should head tonight for a celebration. I and Sri Deepak Khosla have already finished our celebration. Regards K.V.Dhananjay Advocate

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