Writ Petition Seeking Audio-record

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NOTICE OF MOTION To : 1.

UNION OF INDIA Acting through The Secretary Ministry of Law & Justice NEW DELHI 110 003

2.

GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI Represented by its Chief Secretary Players Building I.P.Estate New Delhi 110 002

3.

HON’BLE REGISTRAR GENERAL High Court of Delhi NEW DELHI – 110 003

4.

HON’BLE REGISTRAR High Court of Delhi NEW DELHI – 110 003 IN THE MATTER OF: DEEPAK KHOSLA

…

RESPONDENTS

……….PETITIONER Vs.

UNION OF INDIA & ORS.

……….RESPONDENTS

Dear Sirs, Please take note that the accompanying Writ Petition is being filed by me on behalf of my client before the Hon’ble High Court of Delhi under Article 226 of the Constitution of India, and which may be heard by the Hon’ble Court on any date on or after 27-10-2009. Please acknowledge receipt. Thanking you, Filed On : 26-10-2009 NEW DELHI

Deepak Khosla PETITIONER Through : K.V.DHANANJAY & SHEKHAR DEVASA ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION NO._____________OF 2009 IN THE MATTER OF : DEEPAK KHOSLA

….PETITIONER Vs.

UNION OF INDIA & ORS.

…RESPONDENTS

URGENT APPLICATION The Registrar Delhi High Court New Delhi Sir, Kindly treat the accompanying petition as an urgent one. The grounds of urgency are: “URGENT EX PARTE DIRECTIONS ARE PRAYED FOR” All necessary parties have been served. Further, the reliefs prayed for are all inter-connected, and it is not possible to disassociate them and file separate applications, hence, the petition and application may be put up before this Hon'ble Court in the manner presented. Furthermore, as various judgments and provisions of law have been extracted and reproduced in the petition, there is some underlining / bold to draw the attention of the Hon’ble Court to the operative part of the judgment / law. This is necessary to aid the Hon’ble Court to save its time. Therefore, it is requested that the same may be placed before the Hon’ble Court despite office objections, if any, which would be to our sole risk and cost. We undertake that we shall not rely on any annexures that may be illegible. Please place the same accordingly at our risk and cost. Filed On : 26-10-2009 NEW DELHI

Deepak Khosla PETITIONER Through : K.V.DHANANJAY & SHEKHAR DEVASA ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION No._____________OF 2009 [Under Article 226 read with Articles 13, 14, 19(1)(g), 20, 21, 39(a), 44 and 50, read with Articles 51A(b), 51A(h) and 51A(j) of the Constitution of India, read with Section 122 of the Code of Civil Procedure (1908), read with Section 7 of the Delhi High Court Act, read with Rules 14 and 18 of the Delhi High Court (Original Side) Rules, 1967, read with the Contempt of Courts Act, 1971]. IN THE MATTER OF: DEEPAK KHOSLA

……….PETITIONER Vs.

UNION OF INDIA & ORS.

……RESPONDENTS

MEMO OF PARTIES

DEEPAK KHOSLA S/o Shri R.P. Khosla Aged about 50 years House No.218 Sector XV-A NOIDA 201 301 (U.P.) AND 1

UNION OF INDIA Represented by Secretary Ministry of Law and Justice 4th Floor, A Wing Shastri Bhawan New Delhi 110 001

2

GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI Represented by its

PETITIONER

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Chief Secretary Players Building I.P.Estate New Delhi 110 002 3

REGISTRAR GENERAL Delhi High Court Sher Shah Road New Delhi 110 003

4.

REGISTRAR Delhi High Court Sher Shah Road New Delhi 110 003

Filed On : 26-10-2009

RESPONDENTS

Deepak Khosla PETITIONER 218 Sector XV-A NOIDA 099 530 96650

NEW DELHI Through : K.V.DHANANJAY & SHEKHAR DEVASA ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION NO._____________OF 2009 IN THE MATTER OF : DEEPAK KHOSLA

….PETITIONER Vs.

UNION OF INDIA & ORS.

…RESPONDENTS

SYNOPSIS AND LIST OF DATES Upto 1908

1908-09

Contempt in India was covered by the principles of common law as prevailing in England. Dissatisfied with the above arrangement, consultations were started by Lord Minto with the leaders of all the Provinicial Governments to evolve a Bill for regulating acts of contempt of court. Pursuant to these consultations between 1908-09, the

1910 - 1914

1911-1914 Bill was attempted to be introduced by Government, but by that time, the Press Act of 1910 had already been placed on the Statute Book, leading the Government to believe that it was neither necessary nor opportune to proceed with the intended legislation, especially on account of the subsequent outbreak of World War I. At that time, judicial proceedings in India were still subjected to jury trials ; furthermore, by the fact that the 1911-1914 Bill was shelved partly because the Press Act of 1910 was put into place also lends credence to the petitioner’s argument that the main thrust of contempt legislation in the past insofar as ‘criminal contempt’ is concerned was to disallow the Press from misreporting or deviating from an optimal standard of conduct in reporting judicial proceedings, as this manner of publication might or could tend to - affect the minds of existing or potential

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jurors, and thereby might – or could interfere, or tend to interfere – in the due course of judicial proceedings,.

1925

The Contempt of Courts Act of 1925 was enacted. No definition of what constituted contempt was provided within the body of the Act. Jury trials were still prevalent in India.

1952

The Contempt of Courts Act of 1952 was enacted, and which Act repealed and replaced the Act of 1925. The definition of what constituted contempt still eluded from being set out within the body of the Act. Jury trials were still prevalent in India.

1959-60

The incident known as the Nanavati murder happened at Mumbai (then known as Bombay). Mr. Nanavati, a Naval Officer and a Parsi, charged with

1960

premeditated murder of another Naval Officer (Mr. Prem Ahuja, who was allegedly his English wife Sylvia’s paramour), was acquitted pursuant to trial by a jury. The trial was accompanied throughout by numerous prominent articles by a Mumbai newspaper (Blitz), which proclaimed his innocence. The Blitz was owned by one Mr. Russi Karanjia, also a Parsi. The acquittal by the jury led to large-scale dissatisfaction with the concept of jury trials in the Indian context. Subsequently, in April 1960, soon after the Kawas

1960

Nanavati vs. Prem Ahuja murder trial was concluded (with an acquittal by the jury of the Ld. Trial Court, but which acquittal was reversed by the Hon’ble Bombay High Court, as it was then known, and which reversal was upheld by the Hon'ble Supreme Court in November 1961), a Bill was moved by one Shri Bibhuti Bhushan Das Gupta in the Lok Sabha to consolidate and amend the law relating to contempt of courts. The matter was referred by the Government for further study to what came to be known as the Sanyal Committee.

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Jury trials came to be abolished in India. The primary 1960

trigger was the acquittal in the case of the Nanavati murder. It was also at around that time that the Administration of

1960

Justice Act of 1960 was passed in the UK. By virtue of Section 12 of that Act, even in the UK, accurate reporting ceased to be a contemptuous act at least thereafter (if not before).

1963

The Sanyal Committee Report tabled on 28-2-1963 stated that : “On an examination of that Bill, the Government appeared to have felt that the law relating to contempt of courts was uncertain, undefined and unsatisfactory, and that in light of the constitutional changes which have taken place in the country, it would be advisable to have the entire law on the subject scrutinized by a special Committee set up for the purpose”. Many sweeping recommendations were made. In its Conclusion, the Report stated : “Our conclusion, therefore, is that Parliament is competent to legislate in relation to the law of contempt subject only to the three limitations we have mentioned, and there is no basis for the theory that a court of record has the sole and exclusive power to define and determine what amounts to contempt of it authority.”

1971

Pursuant to the Sanyal Committee Report that the Contempt of Courts Act of 1971 was given assent to, and by virtue of which it repealed and replaced the Act of 1952. For the first time, definition of contempt were given in the body of the Act itself. Furthermore, and again for the first time, a distinction was attempted to be drawn in the body of the Act itself between acts that constituted defiance of a judicial order (which were defined in the Act as “civil contempt”), and other acts intended to prejudice

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or interfere or tend to interfere with the due course of judicial proceedings, and hence, a definition was attempted to be given to “criminal contempt” in light of the preceding description. The petitioner has got embroiled in extensive litigation of 2007-09

a most complex variety, spanning 8 courts across three States. In most matters, he is invariably appearing as petitioner-in-person. There are around 40 proceedings that are ongoing. His adversary has committed large-scale forgery of Company’s documents and records, and has perjured himself before the Hon’ble Courts on numerous occasions, both in false written submissions sworn under oath, forged documents filed on judicial record, as well as by means of oral submissions made by his counsels on his behalf in court. These matters clearly demonstrate the harm visited upon the petitioner due to an absence of a faithful record of court-proceedings.

Upto the Present The instant Writ Petition is filed under Article 226 of the date Constitution of India for the enforcement of the fundamental right of the petitioner, guaranteed, inter alia, under Article 21 of the Constitution, to a timely and transparent resolution of his legal disputes brought before this Hon’ble Court. The petitioner wishes to non-intrusively audio-record judicial proceedings that involve him before this Hon’ble Court. The present writ petition is filed for the purpose of seeking a declaration of entitlement to do so, and for a corresponding restraint upon the Registrar-General and the Registrar of this Hon’ble Court. The petitioner is a party to judicial proceedings before this Hon’ble Court in respect of several matters. Judicial proceedings are presently not transcribed in this Hon’ble Court. Every legal dispute brought before this Hon’ble Court leads to an opportunity for submission of oral arguments by parties to the judicial controversy. An audio record of the oral arguments makes it possible to prepare a word-by-word and a person-by-person account

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of the words spoken by participants to a judicial proceeding. The Petitioner further submits that he has not located any legal provision that bars a litigant from audio-recording judicial proceedings conducted by this Hon’ble Court. This writ petition is therefore filed ex-abundanta cautela. The petitioner most respectfully submits that, if only a provision of law sought to exclude a litigant from audiorecording his proceeding without first ensuring that an official transcription mechanism existed inside a court, the vires of such law would have been most earnestly challenged before this Hon’ble Court by the Petitioner. Orders made by this Hon’ble Court in its various jurisdictions are appealable, whether on intra-court, statutorily or on special leave to the Supreme Court. As such, every appeal pursued on any Order made by this Hon’ble Court would invariably benefit from Court transcription. Citing diverse grounds in support of the petitioner’s entitlement to non-intrusively audio-record judicial proceedings that involve his participation before this Hon’ble Court, namely, that: if only a transcript of the oral arguments could have formed part of the record, the unwieldy gap between the actual time and the effective time consumed by a case could be drastically lessened; the established methods by which judicial proceedings are conducted at this court merit an immediate supplement. Audio-recording of oral arguments is one such supplement; oral arguments assume as much significance as written pleadings. As such, judicial proceedings, under such circumstances, cannot be exposited merely by a perusal of the written pleadings on either side to that judicial proceeding; the fact that this Hon’ble Court has chosen to not install an official transcription apparatus so far has compelled the petitioner to seek the present remedy to substitute for the absence of such official machinery; a judge’s time and attention is burdened with cases of

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varying legal flavour, subject, skill and variety. It would be humanely impossible for any individual to attain a degree of specialisation in the diverse branches of law involved in cases brought before him. A transcript represents an efficient mode of conveying the specifics of a case to a judge; a debate upon the precedential value of a decision of the court must be administered with honesty and discipline and a recording of such a debate is an indispensable tool in ensuring honesty and discipline in the conduct of a judicial proceeding at this Hon’ble court; every litigant has a right to counsel and a derived right to evaluate the effectiveness of his counsel. Transcript of oral arguments performs an invaluable task in this regard; a judicial proceeding conducted without a pervasive awareness of discipline thrust by precedent must necessarily injure the expectations of a litigant and must also injure the interests of society, by denying certainty to the rule of law; a justice delivery mechanism devoid of such transcript is an unacceptable mode of delivery in a modern age which has seen audio recording rapidly advance for the past 70 years; it is simply impossible to expect a judge to satisfactorily adjudicate upon a legal claim without subject wise assistance from a competent and learned counsel. Any such assistance is generally contained in the oral arguments. An absence of transcript of the oral arguments unreasonably deprives the judicial proceeding of a critical resource; a party to a judicial proceeding has an inherent right to information about such proceeding and the consequent right to preserve such information. This right is not fully honoured as long as a party must reconstruct a judicial proceeding by employing his own memory or that of his counsel – given that generally, most individuals, two days after first exposed to fresh information, recall no more than 30 percent of such information; a judicial body that already generates an official

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transcript is legally entitled to say that an unofficial transcript serves no purpose – a judicial body that expresses no inclination to generate its own official transcript cannot, in any honesty, frown upon an effort of a litigant to compensate for the court’s own failure to generate an official transcript; the petitioner is entitled to the relief sought for in this petition as a matter of law in view of the fact that he seeks to impose no burden whatsoever upon any participant to a judicial proceeding before this Hon’ble court; in the pursuit of its judicial power, this Hon’ble Court is effectively under a duty to consent to an arrangement that is bound to render the adjudication more timely and efficient, as sought by the petitioner; a judicial body that is reluctant to reform itself is under a constitutional duty to afford relief to a litigant who seeks to mitigate the suffering brought about by the reluctance of the Court to reform itself. Such a duty is clearly founded under article 21 of the Constitution of India; So filed, for the enforcement of the fundamental right of the petitioner, in terms of article 21 of the Constitution, to a timely and transparent resolution of his legal disputes, under article 21 of the Constitution, brought before this Hon’ble Court. 26-10-2009 Deepak Khosla PETITIONER NEW DELHI Through : K.V.DHANANJAY & SHEKHAR DEVASA ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION No._____________OF 2009 [Under Article 226 read with Articles 13, 14, 19(1)(g), 20, 21, 39(a), 44 and 50, read with Articles 51A(b), 51A(h) and 51A(j) of the Constitution of India, read with Section 122 of the Code of Civil Procedure (1908), read with Section 7 of the Delhi High Court Act, read with Rules 14 and 18 of the Delhi High Court (Original Side) Rules, 1967, read with the Contempt of Courts Act, 1971]. IN THE MATTER OF : A Writ Petition filed under Article 226 of the Constitution of India for the enforcement of the fundamental right of the petitioner, guaranteed under Article 21 of the Constitution, to a timely and transparent resolution of his legal disputes brought before this Hon’ble Court ; for a declaration of entitlement to non-intrusively audio-record relevant judicial proceeding, and for the issue of corresponding restraint upon the officers of this Court. BETWEEN: DEEPAK KHOSLA S/o Shri R.P. Khosla Aged about 50 years House No.218 Sector XV-A NOIDA 201 301 (U.P.) AND 1

UNION OF INDIA Represented by Secretary Ministry of Law and Justice 4th Floor, A Wing Shastri Bhawan NEW DELHI 110 001

2

GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI Represented by its

PETITIONER

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Chief Secretary Players Building I.P.Estate NEW DELHI 110 002 3

REGISTRAR GENERAL Delhi High Court Sher Shah Road NEW DELHI 110 003

4.

REGISTRAR Delhi High Court Sher Shah Road NEW DELHI 110 003

RESPONDENTS

The Humble Petition of the Petitioner above-named MOST RESPECTFULLY SHOWETH : 1.

The instant writ petition is filed under Article 226 of the Constitution of India for the enforcement of the fundamental right of the petitioner to a timely and transparent resolution of legal disputes brought before this Hon’ble Court.

2.

Respondent No. 1 is the Union of India, represented by the officer authorised to take notice and to answer a cause of action as at present. The constitution and organisation of a High Court is a matter of exclusive Union legislation1.

3.

Respondent No. 2 is the National Capital Territory of Delhi, represented by the officer authorised to take notice and to answer a cause of action as at present. The National Capital Territory of Delhi, in its capacity as the Government for the territory in which 1

Schedule VII to the Constitution: List I. Entry 78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.

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this Hon’ble Court exercises its jurisdiction, is the largest litigantrespondent before this Hon’ble Court in respect of writ petitions instituted under Article 226 of the Constitution. 4.

Respondent No. 3 is the Registrar-General of this Hon’ble Court, sued in his capacity as the administrator and executive head of this Hon’ble Court.

5.

Respondent No. 4 is the Registrar of this Hon’ble Court, sued in his capacity, inter alia, as the Secretary of the ‘Rules Committee’. This Committee has been formed by this Hon'ble Court for review / amplification / expansion / amendment / clarification of the Delhi High Court Rules, which act(s) are performed by this Hon'ble Court in exercise of the powers vested in it by Section 122 of the Code of Civil Procedure read with Section 7 of the Delhi High Courts Act, read with Rules 14 and 18 of the Delhi High Court (Original Side) Rules, 1967

6.

The petitioner wishes to non-intrusively audio-record judicial proceedings that involve him before this Hon’ble Court. The present writ petition is filed ex abundanti cautela for the purpose of seeking a declaration of entitlement to do so, and for a corresponding restraint upon the Registrar-General of this Hon’ble Court from interfering and/or preventing the same.

7.

The Petitioner further submits that he has not located any legal provision

that

bars

a

litigant

from

audio-recording

judicial

proceedings conducted by this Hon’ble Court. This writ petition is, therefore, filed purely ex abundanti cautela. The petitioner most respectfully submits that if a provision of law existed which sought to exclude or restrain or restrict a litigant from audio-recording court proceedings relating to him without first ensuring that an official transcription mechanism existed inside a Court, the vires of such

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law, with the greatest of promptitude, would have most earnestly been challenged by the Petitioner before this Hon’ble Court. 8.

The petitioner is a party to judicial proceedings before this Hon’ble Court in respect, inter alia, of the following matters:

Sl.

Case No.

Title

Progress in the case

Co.A No. 6 of 2008

45-50 of pre-notice in review hearings have been held next date is 12-11-2009.

No. 1.

3.

CCP No. 15 of 2008 in Co.A No. 6 of 2008

4.

Crl. Misc. (Co) Application No. 3 of 2008

Montreaux Resorts (P) Ltd & Anr. Vs. Mr. Vikram Bakshi & Ors. R.P. Khosla vs. Montreaux Resorts (P) Ltd & Ors.` Montreaux Resorts (P) Ltd & Anr. Vs. Mr. Vikram Bakshi & Ors. Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

5.

Crl. Misc. (Co) Application No. 4 of 2008

Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

6.

Crl. Misc. (Co) Application No. 5 of 2008

Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

7.

Crl. Misc. (Co) Application No. 1 of 2009

Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

8.

Crl. Misc. (Co) Application No. 2 of 2009

Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

9.

Crl. Misc. (Co) Application No. 3 of 2009

Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

10.

Crl. Misc. (Co) Application No. 4 of 2009

Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

2.

Co.A No. 7 of 2008

Position of the Petitioner (as party)

Respondent No. 11.

---do---

Respondent No. 10.

Notice issued on 310-2008 ; next date is 13-11-2009.

Arguing for his wife, petitioner Mrs. Sonia Khosla.

Listed around 45-50 times till date ;l no hearing has been held. next date is 611-2009. Listed around 35-40 times till date ; practically no hearing has been held. next date is 611-2009. Listed around 35-30 times till date ; no hearing has been held. next date is 611-2009. Listed around 30-35 times till date ; no hearing has been held. next date is 611-2009. Listed around 30-35 times till date ; no hearing has been held. next date is 611-2009. Listed around 30-35 times till date ; no hearing has been held. next date is 611-2009. Listed around 30-35 times till date ; no hearing has been held.

Arguing for his wife, petitioner Mrs. Sonia Khosla. Arguing for his wife, petitioner Mrs. Sonia Khosla. Arguing for his wife, petitioner Mrs. Sonia Khosla. Arguing for his wife, petitioner Mrs. Sonia Khosla. Arguing for his wife, petitioner Mrs. Sonia Khosla. Arguing for his wife, petitioner Mrs. Sonia Khosla. Arguing for his wife, petitioner Mrs. Sonia Khosla.

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11.

Crl. Misc. (Co) Application No. 5 of 2009

Mrs. Sonia Khosla vs. Mr. Vikram Bakshi & Ors.

12.

CCP No. 215 of 2008

Montreaux Resorts (P) Ltd & Anr. Vs. Mr. Vikram Bakshi & Ors.

13.

CCP No. 216 of 2008

14.

CCP No. 217 of 2008

15.

CCP No. 343 of 2008

Montreaux Resorts (P) Ltd & Anr. Vs. Mr. Vikram Bakshi & Ors. Montreaux Resorts (P) Ltd & Anr. Vs. Mr. Vikram Bakshi & Ors. Montreaux Resorts (P) Ltd & Anr. Vs. Mr. Vikram Bakshi & Ors. Montreaux Resorts (P) Ltd & Ors. Vs. Mrs. Sonia Khosla & Anr. Mrs. Sonia Khosla vs. Mr. Vikram Bakshi. Mr. Deepak Khosla vs. Mr. Vikram Bakshi.

16.

CCP No. 165 of 2008

17.

Crl. Contempt No. 4 of 2009

18.

Crl. Contempt No. 22 of 2009

9.

Listed around 30-35 times till date ; no hearing has been held. next date is 13-11-2009. Notice issued ; next date in the matter is 18-12-2009.

Arguing for his wife, petitioner Mrs. Sonia Khosla.

Notice issued ; next date in the matter is 18-12-2009.

Arguing for his wife, petitioner Mrs. Sonia Khosla.

Notice issued ; next date in the matter is 18-12-2009.

Arguing for his wife, petitioner Mrs. Sonia Khosla.

Hearing is awaited. next date is 26-112009.

Petitioner No. 3.

Notice issued ; next date is 18-12-2009. Notice issued on 21-8-2009 ; next date is 4-2-2010. Notice issued on 910-2009 ; next date is 4-2-2010.

Arguing for his wife, petitioner Mrs. Sonia Khosla.

Respondent No. 2. Arguing for his wife, petitioner Mrs. Sonia Khosla. Petitioner.

Judicial proceedings are presently not transcribed in this Hon’ble Court. Every legal dispute brought before this Hon’ble Court leads to an opportunity for submission of oral arguments by parties to the judicial controversy. An audio-record of the oral arguments makes it possible to prepare a word-by-word and a person-by-person account of the words spoken by participants to a judicial proceeding.

10.

Transcription has become an integral part of judicial proceedings in several democratic nations of the world. Appellate Courts in many jurisdictions routinely order for a retrial should a trial be vitiated by lack of official transcript. The Appellate Courts in those jurisdictions routinely consult transcript of proceedings cited as a precedent for the purpose of settling conflicting interpretations of a precedent. The

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Constitutional Courts in several jurisdictions have traditionally relied upon transcript of oral arguments for the proper appreciation and adjudication of issues presented to them. 11.

The petitioner respectfully seeks to audio-record those judicial proceedings which involve him. The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific Court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic.

12.

Orders made by this Hon’ble Court in its various jurisdictions2 are appealable, whether on intra-Court, statutorily or on special leave to the Supreme Court. As such, every appeal pursued on any Order made by this Hon’ble Court would invariably benefit from Court transcription3.

13.

Every appeal is a continuation of the trial or the original proceeding 4, and every appeal is nothing but an assignment of errors committed by the Court below. A transcript of the proceeding before the Court 2

67. The High Courts in India are superior Courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers. (See Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1 : (1966) 3 SCR 744]. As stated in Halsbury's Laws of England, 4th edition, Vol.10, para 713: Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court. M.V.Elizabeth v. Harwan Investment & Trading Pvt. Ltd. [AIR 1993 SC 1014 : 1993 Supp (2) SCC 433] 3

“A good oral argument is in the finest tradition of our profession: it confers a benefit both upon your client and upon the Court. You should seize the Rehnquist, Oral Advocacy, 27 S. Texas L. Rev. 303 (1986). 4

‘the legal pursuit of a remedy, suit, appeal and second appeal, are really but West, J., in Chinto Joshi v. Krishnaji Narayan ILR (3) Bom 214 : 4 Ind. Jur. 33

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below helps an Appellate Court in accurately reconstructing a trial. The efficacy of an appeal is largely determined by the accuracy with which a trial below could be reconstructed before the Appellate Court. Because written pleadings are contextualised through oral arguments, for the proper assignment of an error, a transcript of the oral arguments laid before the Appellate Court becomes both necessary and desirable ; in recognition of this, recording devices are commonplace, and transcribing professionals are active in every part of the world and more so in the city of Delhi and its adjuncts, Noida and Gurgaon. As a matter of fact, India is one of the leading transcription centers for legal manuscripts, offering its services for converting an audio electronic file into written text for customers the world over. 14.

Further, it has been a tradition with every High Court (including this Hon’ble Court) to periodically assign different subjects to different judges - what is known as a ‘Roster’. In view of the fact that the average time consumed by a Bench to dispose a matter before it is significantly higher than the typical duration of a Roster, it is only to be expected that different judges may preside over the adjudication of the same matter before a High Court. In the absence of a proper record of the arguments delivered in a given case, a judge who hears a case but does not conclude the arguments is disabled from conveying the progress in a case to a different judge who takes over the subject matter. The efficiency of a judicial proceeding is greatly hindered when parties are forced to compensate their counsel for idle or redundant appearances. As such, unless a proper record of the oral arguments in a case is available, the delay in adjudicating a case beyond the typical length of a roster results in substantial delay and denial of justice.

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15.

The right to a speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India5. Although Article 21 of the Constitution has been interpreted by Courts in India to confer a right upon an accused in a criminal trial to an expectation of a speedy trial, the principle that underlies such interpretation applies with equal force to a civil judicial proceeding. Parties to a judicial proceeding have a fundamental right to efficacious justice, leading to their legitimate expectation, inter alia, of speedy trial and error-free adjudication6.

16.

The common law tradition that India has adopted recognises an individual’s entitlement to justice. As such, even while lakhs of litigants approach a Court, the cases they bring before a Court are personal and private except in cases of public interest litigation. As such, the harm that is caused by the delay in the disposal of an individual case is both real and profound. Such harm is real to the parties to that case and also to persons claiming under those parties. As such, an individual party to a case is fully justified in seeking to redress such harm in a manner sought in the present petition.

17.

Miniature digital audio-recorders which are several times smaller than the smallest cell phone in use today are widely used in the society, and a party to a judicial proceeding cannot be reasonably excluded from utilising such device in a Courtroom under circumstances such as those set out in the present petition.

18.

The recording technology has been known to India for well over 70 years. In those 70 years, the technology has rapidly advanced and the recording instruments have continually shrunk in size, as well as 5

Hussainara Khatoon v. Home Secretary, State of Bihar [AIR 1979 SC 1360 : 1980 (1) SCC 81] 6

‘To no one will we sell, to no one will we refuse or delay, right or justice.’ – Clause 40, Magna Carta

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have become totally unobtrusive. As an example, a digital voice recorder manufactured by Samsung Corporation (Seoul, South Korea) and branded as SAMSUNG YP-Z5F weighs a mere 56 grams only, and the dimension of this instrument is a mere 42.2 mm (width) * 89.8 mm (length) * 12.3 mm (thickness). A copy of the manual of this instrument is produced herewith and marked as Annexure A. It features an internal storage capacity of 4 Gigabytes. It makes no noise whatsoever when operated specially on account of the fact that it has no built-in speaker. It has the potential to capture sound generated within a short distance and is capable of uninterruptedly recording spoken words for well over 12 hours at one stretch. This device may be worn inside a pocket of a shirt or a trouser. The recording once made by this device is, at the end of the day or upon need of the owner, transferred to a computer (transfer typically completes in 5 to 20 seconds). The audio recording is then transcribed manually, or automatically by software validly licensed for the purpose, with the subsequent manual intervention being only to review and correct errors (if any) that may have crept in into the automatic conversion of the audio file into typed text 19.

It is submitted that the city of Delhi and its adjuncts, Gurgaon and Noida, are home to several thousand transcription professionals who have the expertise to transcribe the spoken word with 100 % accuracy. Transcription software currently available in the market assures a 99% percent accuracy, and the petitioner will take steps to ensure that the transcription prepared for him will remain 100% faithful to the spoken word. The petitioner will keep the audiorecording file for his reference. The transcription would be promptly made available in no time to the Bench, if so instructed by it. Copies will also be freely distributed to the other parties to the case. For the purpose of illustration, a copy of the transcript of oral arguments before the Hon’ble Supreme Court of the United States in the case

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of William Crawford v. Marion Country Election Board7 is produced herewith and marked as Annexure B. 20.

It is further submitted that the Annual Report for this Hon’ble Court published for the Financial Year 2007-2008 and made available on the website of the Court at www.delhihighcourt.nic.in sheds light on the factual aspects of judicial work at this Court. A copy of the same is produced herewith and marked as Annexure C. A perusal of the said report discloses an alarming number of arrears at this Court. The arrears as on 31-Mar-2008 stood at 1,38,4118. It has been estimated that at the current rate of disposal, a few hundred years would be required to clear the arrears at this Court. However, if only one were to review the ‘actual’ time which has been spent on debating an issue before the Court, and the time consumed by redundant debates is excluded therefrom, the ‘effective’ time spent on adjudicating a case would be seen to be substantially lower than the time actually consumed by that case. Therefore, if only a transcript of the oral arguments could have formed part of the judicial record, the inordinately large and unwieldy gap between the ‘actual’ time and the ‘effective’ time consumed by a case could be drastically lessened, thereby leading this Hon'ble Court to dispose off a larger number of pending cases within the same time and infrastructural resources available to it,

and with no change

whatsoever in the existing infrastructure. Assuredly, this is a matter for the “Public Good”, and hence, any effort by this Hon'ble Court in this direction would only be in execution of what is implicit in “Public Policy”. 7

This case involves a challenge to the constitutionality of a state law that introduced an amendment to the prevailing election law by limiting voting to only those individuals who produced the prescribed identification. 8

Article 226 Cases: 25742 / Civil Cases (Appellate side): 16205 / Tax Matters: 4551 / Civil Miscellaneous Applications: 27653 / Criminal Cases: 13798 / Criminal Miscellaneous Applications: 18514 / Arbitration and Allied Cases: 11354 / Execution Applications: 2843 / Interlocutory Applications: 18046

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21.

It is further submitted that the problem of arrears at the High Courts has been most earnestly looked into by several reports prepared by the Law Commission of India. The Law Commission of India, in its One Hundred Twenty Fourth Report (1988) said this much:

1.6. As many as ten attempts9 have been made in the past by Commissions and Committees to tackle the problem of exploding Court dockets in the High Courts. Numerous suggestions

for

improving

the

situation

by

amending

substantive and procedural laws were made. A few have been implemented but majority put in deep freeze…. 22.

It is therefore submitted that if only this Hon’ble Court were to incorporate into the judgment of every case, a record of the total hours consumed by oral arguments spread over various dates, the inefficiencies brought about by the absence of a transcript will become glaringly evident - If a case lodged in, say, 2001 is disposed in 2009, and the actual time consumed by oral arguments is no more than, say, 48 hours, the structural inefficiencies brought about by the absence of a transcript could become glaringly evident. The present request by the petitioner to record oral arguments must be seen in light of this context. The established methods by which judicial proceedings are conducted at this Court merit an immediate 9

Report of the High Court Arrears Committee 1949; Law Commission of India, 14th Report on Reform of Judicial Administration (1958) Law Commission of India, 27th Report on Code of Civil Procedure, 1908 (1964) Law Commission of India, 41st Report on Code of Criminal Procedure, 1898 (1969) Law Commission of India, 54th Report on Code of Civil Procedure, 1908 (1973) Law Commission of India, 58th Report on Structure and Jurisdiction of the Higher Judiciary (1974) Report of High Court Arrears Committee, 1972 Law Commission of India, 79th Report on Delay and Arrears in High Courts and other Appellate Courts (1979) Law Commission of India, 99th Report on Oral and Written Arguments in the Higher Courts (1984) Satish Chandra’s Committee Report, 1986

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supplement. Audio-recording of oral arguments is one such supplement10.

It is most relevant to this petition to respectfully

highlight and emphasise that the petitioner is neither offering, nor seeking, a solution to the problems he has chronicled which, by any stretch of the imagination, may be termed as a “drastic” solution that seeks to inflict any pain or discomfort or even inconvenience to any party to judicial proceedings whatsoever, nor does his request impinge on the stretched resources of this Hon'ble Court in any manner whatsoever.The disadvantages that are caused by an absence of audio-recording / transcription are far too many, and any attempt to illustrate them in a fully-comprehensive manner must simply fail. It is trite that arguments constitute a critical part of every judicial proceeding in a High Court, perhaps even its most critical part. In any Court of law, a legal controversy rarely proceeds to judgment without adequate opportunity for arguments on both sides of the controversy. As such, oral arguments assume as much significance as written pleadings (if not more). As such, judicial proceedings, under such circumstances, cannot be exposited merely by a perusal of the written pleadings of either side to that judicial proceeding11. A transcript of oral arguments becomes an inevitable (nay, essential) ‘companion’ to all participants to a judicial 10

Our results therefore show that, like other elements of the Court’s procedures, oral arguments matter to the decision in a case. In sum, we show that the justices find oral arguments to be an important part of the Court’s decision-making process, and that the quality of arguments, as measured by Justice Blackmun, affects the justices’ votes. This result is important, and it should help build Supreme Court scholars’ understanding of how the process of decision making affects outcomes. The Influence of Oral Arguments on the U.S. Supreme Court TIMOTHY R. JOHNSON, University of Minnesota PAUL J. WAHLBECK, George Washington University JAMES F. SPRIGGS, II University of California, Davis 11

…However, the learned author referred to the decision in Sengupta Vs. Holms, (2002) EWCA Civ 1104 at (38) and quoted the views of Laws L.J. where the learned Judge held that central place is accorded to oral argument in our common law adversarial system. The learned Judge further said that ...this I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the center of it (See pages 396 and 397 of the book).

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proceeding, so much so that in the absence of such transcripts, a gross injustice could and well may very well be likely to the cause of one or the other party / ies to the litigation. Moroeover, it would be trite to highlight that the extra time spent on matter “A” (because, inter alia, of a lack of transcription) would certainly be to the prejudice of the cause of other parties awaiting adjudication of their matters before this Hon'ble Court, the hearing of whose matters could be postponed and delayed on account of the larger amount of time being required to be spent by this Hon'ble Court on matter “A”. This Hon’ble Court, in the case of DCM Ltd v. Municipal Corporation of Delhi12, ruled that: “27…The importance of oral hearing cannot be nullified by saying that the authority has considered all the submissions contained in the written arguments. Oral hearing generates discussion and leads to clarification of doubt, if any, which the authority while has to decide might be having in its mind. The importance of benefit of a healthy discussion can never be over emphasised. It is a basic tenet of law by which we are governed….” 23.

It is further submitted that this Hon’ble Court spent a sum of Rs.42,45,47,490 (Rupees Forty Two Crores Forty Five Lakhs Forty Seven Thousand And Four Hundred Ninety) for the financial year 2007-0813. It is respectfully submitted that all Court halls at this High Court could be equipped with an official transcription apparatus at a SRC Projects Pvt. Ltd v. Commissioner of Commercial Taxes [Madras High Court – Writ Appeals 893 of 2008 – Decided on 08-Sep-2008 (Division Bench)] 12

AIR 1998 Delhi 348 : 73 (1998) DLT 227 (Division Bench)

13

Annexure C. Page 40

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cost that is a negligible fraction of the annual financial outlay incurred at this Hon’ble Court. (The petitioner, based on his research, estimates that the cost of installing a state-of-the-art transcription apparatus at a Court hall costs no more than Rs.1 lakh). Unfortunately, the fact that this Hon’ble Court has chosen to not install an official transcription apparatus so far has compelled the petitioner to seek the present remedy to substitute for the absence of such official machinery. 24.

An absence of transcript burdens a judicial proceeding in myriad ways.

25.

A case listed on any given day generally requires the Judges to peruse the pleadings, and therefore, consumes considerable time and attention of a judge. Once a listed matter is called for arguments, in practice, a range of developments are possible. Arguments may commence and not conclude by the end of the day’s business. Unless the arguments are resumed on the next (or a near) working day, the absence of a transcript burdens the participants at the next hearing with the avoidable task of making assumptions about the progress in the previous hearing(s), which assumptions may considerably vary from the actual. An absence of transcript, under such circumstances, results in an easily-avoidable wastage of judicial time, energy and devotion14.

26.

Further, given the increasing number of cases that are filed every day in a High Court, every addition to the back-log deprives each case of a resolution within a reasonable time. The Annual Report published by this Hon’ble Court estimates that an average of 64 14

"…not infrequently oral argument develops a new issue overlooked or not adequately briefed. This gives the Court an opportunity to instruct counsel to prepare supplemental briefing during a specified period." (Mosk,In Defense of Oral Argument (1999) 1 J. App.Prac. & Proc. 25, 27.

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cases were placed for hearing before a Bench on every working day during 2007-08. The said Report further estimates that the average time available for the disposition of a case by a Bench is a mere 4 minutes and 55 seconds15. An absence of transcript enhances such unreasonableness by further depriving every adjudication of a critical resource. A judge’s time and attention is burdened with cases of varying legal flavours, subject, skill and variety. It would be humanly impossible for any individual to attain a degree of specialisation in the diverse branches of law involved in cases brought before him. A transcript represents an efficient mode of conveying the specifics of a case to a judge. 27.

In ‘Oral Arguments And Decision Making on the United States Supreme Court’ by Timothy R Johnson (published by State University of New York Press, 2004), the significance of oral arguments is illuminated with reference to the opinion of the Judges of the United States Supreme Court and with further reference to the actual working of the Courts : ‘…Things can be put in perspective during oral argument in a way that they can’t in a written brief’ (O’Brien 2000, 260). Chief Justice Rehnquist (2001) confirms this point and argues that a good oral argument ‘will have something to do with how the case comes out’ (224).’ Pg.16 Clearly, these public statements suggest that justices believe oral arguments play a key role in how they decide cases… Justice Byron White (1982, 383) suggests that during these proceedings the Court treats lawyers as resources. By this, he seems to suggest that counsel come to the Court to provide new or clarifying information, which enables the justices to gain a clearer picture of the case at hand. Indeed, there may 15

Annexure C. Page 40

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be points about which the justices are still unclear after reading the briefs, and this face-to-face exchange can make them clearer. As Chief Justice Rehnquist (2001) argues ‘one can do his level best to digest from the briefs…what he believes necessary to decide the case, and still find himself falling short in one aspect or another of either the law or the facts. Oral argument can cure these shortcomings’. Pg.16 Justice William O. Douglas holds a somewhat different perspective on oral arguments. He argues that these proceedings are meant to teach the justices about the key points of a case: ‘The purpose of a hearing is that the Court may learn what it does not know…It is the education of the Justices…that is the essential function of the appellate lawyer’ (in Galloway 1989, 84). Moreover, Justice John Harlan (1955) claims oral arguments are the best mechanism

for

information

gathering:

‘there

is

no

substitute…for the Socratic method of procedure in getting at the real heart of an issue and in finding out where the truth lies.’ Pg.16 …As Chief Justice Rehnquist (1984, 1021) writes: ‘Oral argument offers a direct interchange of ideas between Court and Counsel…Counsel can play a significant role in responding to the concerns of the Judges, concerns that counsel won’t always be able to anticipate when preparing briefs’. Thus, for him, oral argument is ‘probably the most important catalyst for generating further thought’ (Rehnquist 2001, 241). Pg.16

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Rehnquist (1986) best sums up how justices perceive oral arguments: ‘Justices of the Supreme Court of the United States have almost unanimously agreed that effective oral advocacy is one of the most powerful tools of the profession’ (289). Even the principal skeptic (Justice Scalia) changed his view once he joined the Court. Pg.16-17 …For instance, a justice may use oral arguments to probe the applicability and interpretation of relevant precedent. In Lemon v. Kurtzman (1973), the Court was asked to determine the constitutionality of using tax monies to reimburse nonpublic schools for expense such as teacher salaries, books and instructional materials (Epstein and Walker 1998b, 163). During oral arguments, one justice inquired about the applicability of the standard set in Walz v. Tax Commission of the City of New York (1970): ‘At least some of the opinions in Walz suggest that there might be a distinction between subsidy situations and tax exemptions? Isn’t is fair to say that the Court’s opinion indicated some doubt – at least doubt – about direct subsidy’.(transcript of oral argument, 37)? Pg.27 …In Hortonville Joint School District No.1 v. Hortinville Education Association (1976), the Court considered whether a school board could terminate teachers for striking without first providing a hearing before an impartial decision maker. During oral arguments, Justice White asked whether a federal question even existed in the case: ‘It seems to me what you ought to be arguing is to dismiss this case on the ground that it has not any federal question in it. You keep talking about Wisconsin law. As I understand, we brought the

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case here because there was a federal issue in it. The Wisconsin Supreme Court decided that the school board wasn’t an unbiased body to make any decision at all. And that is the issue that is here. Why should we be arguing about what Wisconsin law means?’ Pg.27 More recently, in Bush v. Gore (2000), Justices Kennedy and O’Connor queried whether a federal question existed in the disputed Florida election. Immediately upon beginning his oral arguments, Justice Kennedy asked Theodore Olson (Bush’s attorney): ‘Can you begin by telling us our federal jurisdiction, where is the federal question here’ (transcript of oral argument, 1)? Pg.27 28.

It is further submitted that the discussion of a legal precedent is rarely incorporated into the written pleading, and the extensive nature of discussion concerning the applicability of the doctrine of precedent to a particular case renders the transcription of the oral arguments an all the more critical component of the judicial proceeding of that particular case.

29.

It is further submitted that a decision once rendered by the Hon’ble Supreme Court is subsequently referred to, relied upon, considered, distinguished, reversed, doubted or over-ruled by a later decision of the Supreme Court. The prior decisions of the Supreme Court that were so addressed in cases decided between 2001 to 2006 is produced herewith and marked as Annexure D16. As such, a debate upon the precedential value of a decision of the Supreme Court must be administered with honesty and discipline, and a recording of 16

Only cases with title beginning with A (Volume 2 – pages vii & viii & 1 to 21) and reported in Supreme Court Cases (SCC) is extracted from a 4 volume Book published by Lexis-Nexis India – Supreme Court Case Citator (20012006)

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such a debate is an indispensable tool in ensuring honesty and discipline in the conduct of a judicial proceeding at this Hon’ble Court.17. 30.

The petitioner is reasonably aware of the procedure prescribed for the conduct of judicial proceedings at this Hon’ble Court. The petitioner had previously sought to ascertain from this Hon’ble Court whether, in terms of Clause 9 of Original Side Practice Direction No. 6 of 1974 (renumbered as No. 3 vide Notification No. 364 / Rules / DHC dated 13-Dec-1991), detailed information was recorded by the officers of this Court in relation to ‘the times at which hearing of a matter commences on each day of hearing, the party that was heard, and the length of time for which each party was heard’. A copy of an application so made on 26-May-2009 to the Public Information Officer, Delhi High Court under the provisions of the Right to Information Act, 2005 is produced herewith and marked as Annexure E. A reply dated 20-Jul-2009 to the said application says that ‘the information sought is not available on the records of the Judicial files’. A copy of the said reply by the Public Information Officer, Delhi High Court, dated 20-Jul-2009 is produced herewith and marked as Annexure F.

17

On the question of whether a decision from a controlling jurisdiction is ‘directly adverse’ to a lawyer’s position, the prevailing view is that counsel must cite adverse cases that are ostensibly controlling, even though the lawyer reasonably believes that the decision is factually distinguishable or that the Court will ultimately determine the decision is not controlling. See, eg., Tyler v. State, 47 P.3d 1095 (Alaska Ct.App.2001) (extensive discussion of authorities). See generally Floyd, Candor versus Advocacy: Court’s Use of Sanctions To Enforce the Duty of Candor toward the Tribunal, 29 Ga.L.Rev.1035 (1995) (lawyer’s readiness to cite adverse authority will increase due to Court’s expectation of citation and willingness to impose sanctions for failure to do so); Gilmore, Self Inflicted Wounds: The Duty to Disclose Damaging Legal Authority, 45 Clev.St.L.Rev.303 (1995); Lischkoff, Recent Decisions on Citing Authorities to Courts: Model Rule 3.3(a)(3) of the Model Rules of Professional Conduct, 19 J.Legal Prof. 315 (1994) (Court’s narrow reading of Rule, and resulting failure of lawyers to disclose adverse authority, results in waste of judicial resources and diminished confidence in legal system) (pg.334) Annotated Model Rules of Professional Conduct - By Center for Professional Responsibility (American Bar Association) 2003 Edition

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31.

Every litigant has a right to counsel, and a derived right to evaluate the effectiveness of his counsel18. Transcript of oral arguments performs an invaluable task in this regard, and absence of a transcript, especially in cases where the litigant could not, himself, attend the hearing in person, renders a litigant unable to perform this evaluation with any modicum of effectiveness

32.

The Petitioner respectfully submits that there are several references in news reports to instances where individuals who sought to innocently record judicial proceedings in this Hon'ble Court were apprehended outside the courtroom by security staff acting under the administrative directions of Respondent No. 3 / 4 with threat of ‘criminal contempt’ under the Contempt of Courts Act, 1971. The Petitioner most respectfully submits that these type of actions clearly stem from a failure on the part of the Officers of this Hon’ble Court to recognise that such actions breach no stated law or other statutes, and very respectfully, amount to violations of law on their own part insofar as trying to deny and/or restrict the liberty otherwise available to persons in our country.

33.

The petitioner respectfully submits that the recording of a judicial proceeding in the manner sought in this petition does not constitute 18

‘…Adequate pretrial investigation and preparation are a necessary foundation for effective assistance at trial.’ Pg.124 ‘It is vitally important that counsel engage in thorough going investigation and preparation’ before the trial begins. If a defence lawyer does not investigate the case and prepare for trial, a defendant will not have the aid of counsel in any real sense (Powell v. Alabama, 1932). Adequate investigation entails looking into all relevant factual aspects of the case – the facts that the prosecution will use to prove guilt and the facts that will assist in refuting the charges. It also involves thorough research of the pertinent legal principles bearing upon resolution of the criminal accusation. Unless counsel has made herself aware of all the apposite facts and law and devoted the time necessary to prepare the witnesses, to formulate arguments and positions, and to plan strategies, defense counsel cannot meaningfully advance the defendant’s interests at trial or subject the prosecution’s case to the adversarial testing contemplated by the Sixth Amendment. Put simply, solid investigation and preparation are necessary foundations for active and full participation in the adversarial trial process’. Pg.124 The Right to Assistance of Counsel : A Reference Guide to the United States Constitution By James J. Tomkovicz (Greenwood Press, 2002)

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‘criminal contempt’ under the said statute, as it in no way or manner prejudices, or tends to prejudice, or interferes, or tends to interfere, with the due course of judicial proceedings. 34.

In this regard, it is very respectfully submitted that the subject of ‘contempt of court’ was initially addressed by the Legislature by way of a formal Act enacted in 1925, prior to which all acts of contempt were evaluated and adjudicated on the basis of the principles of common law prevailing in England. In other words, no hard and fast standards were laid down in law, and evolution of case law and precedents itself created the law of the land. Being dis-satisfied with the lacunaes in this, pursuant to consultation of all the Provincial Governments by Lord Minto’s Government between 1908-09, the 1911-1914 Bill was attempted to be introduced by Government, but by that time, the Press Act of 1910 had already been placed on the Statute Book, leading the Government to believe that it was neither necessary nor opportune to proceed with the intended legislation, especially on account of the outbreak of World War I. It may please be borne in mind by this Hon'ble Court that at that time, proceedings in India were still subjected to jury trials ; furthermore, by the fact that the 1911-1914 Bill was shelved partly because the Press Act of 1910 was put into place also lends credence to the argument that the main thrust of contempt legislation in the past insofar as ‘criminal contempt’ is concerned was to disallow the Press from misreporting or deviating from

an

optimal

standard

of

conduct

in

reporting

judicial

proceedings, as this manner of publication might - or could tend to affect the minds of existing or potential jurors, and thereby might – or could interfere, or tend to interfere – in the due course of judicial proceedings.

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Thereafter, the Bill was referred to a Select Committee, which redrafted it, and by which effort the attempt in the Bill to define “contempt of court” was shelved on the grounds that case law on the subject would continue to form adequate guide. The efforts of this Select Committee bore fruit in the form of the formal Act of 1926. This Act prevailed till 1952, in which year a new Act was enacted, which repealed and replaced the Act of 1926. However, in this Act of 1952 also, the phrase ‘contempt of court’ was not defined, leaving the law to further evolve on the basis of common law precedents, and in light also of the fact that jury trials still remained on the statute book in India at that time. Subsequently, in April 1960, soon after the Kawas Nanavati vs. Prem Ahuja murder trial was concluded (with an acquittal by the jury of the Ld. Trial Court, but which acquittal was reversed by the Hon’ble Bombay High Court, as it was then known, and which reversal was upheld by the Hon'ble Supreme Court in November 1961), a Bill was moved by one Shri Bibhuti Bhushan Das Gupta in the Lok Sabha to consolidate and amend the law relating to contempt of courts. The Sanyal Committee Report tabled on 28-21963 states that : “On an examination of that Bill, the Government appeared to have felt that the law relating to contempt of courts was uncertain, undefined and unsatisfactory, and that in light of the constitutional changes which have taken place in the country, it would be advisable to have the entire law on the subject scrutinized by a special Committee set up for the purpose”. It was pursuant to the Sanyal Committee Report that the Contempt of Courts Act of 1971 was given assent to, and by virtue of which it replaced the Act of 1952, and for the first time, definitions of contempt were given in the body of the Act itself. Furthermore, and again for the first time, a distinction was attempted to be drawn in

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the body of the Act itself between acts that constituted defiance of a judicial order (which were defined in the Act as “civil contempt”), and other acts intended to prejudice or interfere or tend to interfere with the due course of judicial proceedings, and hence, a definition was attempted to be given to “criminal contempt” in light of the preceding description. It was also at around that time that the Administration of Justice Act of 1960 was passed in the UK. It is relevant to the present petition to reproduce Section 12 of that Act, because even in the UK, accurate reporting ceased to be a contemptuous act at least thereafter (if not before) : 12. Publication of information relating to proceedings in private (1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say— (a)where the proceedings— (i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii)are brought under the Children Act 1989; or (iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;] (b) where the proceedings are brought under Part VIII of the M1Mental Health Act 1959, or under any provision of that Actauthorising an application or reference to be made to a Mental Health Review Tribunal or to a county court; (c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published; (d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings; (e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

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(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication. (3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers. (4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section.

35.

That what follows from the above is that the law of contempt in India can be categorised into at least the following five distinct phases, and which phases were categorized by the remarks placed alongside phase :

SL. No. 1. 2. 3. 4. 5.

PHASE Prior to 1925 From 1925 to 1952 From 1952 to 1961 From 1961 to 1971 After 1971 till date

ACT COVERING THAT PERIOD Common law The Act of 1925 The Act of 1952 The Act of 1971

REMARKS Jury trials in existence Jury trials abolished from 1961 onwards.

From this, it follows that since common law is what evolved the jurisprudence relating to contempt till 1925, and again, till 1952, and also, from 1952 to 1961 (till which time jury trials were in existence), case law relating to these three phases is of no relevance today, partly because the principles of case law which otherwise ruled the field only lent persuasive value once the Acts of 1925 and 1952 had been enacted, equally because the precedents under the Acts of 1925 and 1952 cannot be binding

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precedent for interpretation of actions under the Act of 1971, but more because the standards by which allegedly contemptuous acts needed to be adjudged at a time when jury trials were prevalent is far different from the standards evolved after abolition of jury trials. As a matter of fact, very respectfully, it is submitted that precedents of the time after 1961 but which themselves relied on precedents prior to 1961 also are of no relevance today, at least to the circumstances of the petitioner. Therefore, it is very respectfully submitted that fresh standards are required to be evolved by this Hon'ble Court in this regard, shorn of the baggage of ancient history. This is especially so since the avowed motives of the petitioner have nothing to do with publication of court proceedings, but rather, preservation of even the minutiae for his own confidential consumption or that of his advocates, or that of the Court, or the Appellate Court(s), as the case may be, the need for which preservation is so acute that in the absence of which he cannot be said to have received justice in his matters even though the same has been guaranteed to him by the Constitution. 36.

It is further submitted Sanyal Committee, as set out in its Report tabled on 28-2-1963, has stated as follows : “Our conclusion, therefore, is that Parliament is competent to legislate in relation to the law of contempt subject only to the three limitations we have mentioned, and there is no basis for the theory that a court of record has the sole and exclusive power to define and determine what amounts to contempt of it authority.”

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37.

The Petitioner further submits that unlike the situation prevailing prior to 1925 (when contempt was covered by common law), it is the Parliament of India that has enacted the ‘Contempt of Courts Act, 1971’. Even though its equally-august Members are themselves protected by the sacrosanct Constitution against acts or conduct that constitute contempt of their own authority or dignity, it has, itself, recognised the importance of broadcasting and televising of its own proceedings as an act that is a matter of “Public Policy” as it is essential for the “public good”. It is very respectfully submitted that this is undoubtedly a consequence of the current international milieu of “transparency” and “accountability” being the cornerstones on which the legitimate expectations of the international citizenry rest, which citizenry requires these facets of governance to be an essential part of the guiding ethos of any person or body in authority or power. This being the case, it is very respectfully siubmitted that can hardly follow that when the law-maker (the Legislature) itself is protected by a certain far-broader and superior provision of law (the Constitution), but views certain acts as not being contemptuous of its own authority or dignity by virtue of the standards laid down by that Supreme Law (i.e. the Constitution), yet, a subordinate Act (the Contempt of Courts Act of 1971) framed by it under the powers vested in it under the Constitution is to be interpreted in such a manner that the same acts which the Legislature does not view under the Constitution as being contemptuous of its dignity and authority may be viewed by Courts as being contemptuous of the courts under the Contempt of Courts Act.

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It is very respectfully submitted that the Contempt of Courts Act of 1971, while ostensibly appearing to be for the immediate benefit of the august members of the Judiciary who are dispensing justice, is in reality - more for assisting them to maintain the supremacy of the majesty of law, which is not for the benefit of any one or othe rpeeson, but for the eventual benefit of the electorate. Therefore, it is very respectfully submitted that for the Hon’ble Judiciary to interpret the act of recording of its proceedings in a manner that it constitutes contempt of court is inconsistent with the view of the Legislature, whose view is that the same actions relating to recording and televising of its own proceedings do not constitute contempt of the Legislature. This dichotomy in this legally-untenable approach becomes all the more stark when seen in light of the fact that in India, even publication of proceedings (which is far removed from the motives of the petitioner), if totally accurate, can no longer be construed as contempt of court after 1961, when jury trials were abolished. This conclusion is further borne out by the provisions of Sections 4 and 7 of the Contempt of Court Act of 1971, which specifically provide and exempt fair and accurate reporting of judicial procedure (including those in chambers or in camera) from being viewed as contempt. 38.

It is further submitted that the reference in certain cases from the United Kingdom and the United States to a restraint upon the media from recording Court proceedings is principally aimed at insulating their jurors from biased reporting – concerns that, as stated above, are inapplicable to India in view of the fact that jury trials have been abolished in India since 1960, but more so because the fact-finders

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in civil and criminal trials in India are qualified judges and not ordinary members of the public. This restriction in their countries notwithstanding, even the courts in the US and the UK rely heavily on either an audio-visual record of judicial proceedings, or a word-by-word transcription, or both. From this, it clearly follows that mere recording of proceedings, in itself, does not render the act contemptuous ; it is the purpose of the recording by which the act of recording in the US and the UK is adjudged as being contemptuous in those countries or not. If this proposition did not follow would then mean that the Presiding Officers of the courts in the US and the UK are themselves in criminal contempt of their own courts. 39.

Keeping abreast of evolving trends in jurisprudence and in the administration of justice where transparency and accountability are the need of the hour, the practice in England is best illustrated by the fact that the newly constituted Supreme Court of England, commencing its business from 01-Oct-2009 and thereby replacing the venerable House of Lords (which body, in a different jurisdiction and acting as ‘Privy Council’, presided over the administration of the judicial buinsess of British-Inda for well over 250 years), has – suo motu - been televising its proceedings since the very first day of its functioning. A copy of a report in the Asian Age dated 02-Oct-2009 on the inauguration of the Supreme Court of England is produced herewith and marked as Annexure G.

40.

The Petitioner further submits that he does not seek, as a matter of right, that the Court confer legitimacy to his audio-recording. The Petitioner submits that the benefits of a Court transcript are not lost merely because the transcript is derived in the absence of an official

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mechanism. The Petitioner expects that legitimacy to such an audiorecording arises in the absence of legitimate and reasonable contest by any party to a judicial proceeding. 41.

The petitioner has deemed it essential to produce to this Hon'ble Court, a small sub-set of technical information he has gathered in relation to Court transcription. The petitioner further offers material to shed light on the practice in several other jurisdictions, and these documents clearly prove that those Courts have come to rely upon electronic recording as an indispensible part of transacting judicial businesses efficiently and in a transparent manner. These documents are marked colly. as Annexure H. The consequence of widespread adoption of electronic recording by Courts around the world has been the creation of a vibrant marketplace in which specialized companies offer customized, ready-to-use and tamperproof tools to accomplish transcription in Courts on a mere 24 hours’ notice.

42.

The Petitioner has not approached this Hon’ble Court or any other Court of law seeking the relief predicated on the instant cause of action. The petitioner approaches this Hon’ble Court, amongst others, on the following: GROUNDS

I.

Judicial proceedings in this Hon’ble Court, whether judged by historic or present standards, deserve to be transcribed.

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II.

In view of an absence of any official mechanism to transcribe judicial proceedings in this Hon’ble Court, it becomes necessary for a litigant to employ his own transcription.

III.

Every judicial proceeding is invariably reconstructed on appeal and the fairness of an appeal is directly determined by the degree of accuracy with which the proceeding below is reconstructed19. The absence of a transcription greatly burdens an appellate Court with assumptions (about the proceeding below) that may greatly vary from the actual proceeding. A transcript relieves an appellate Court of such enormous burden and in doing so, similarly relieves an appellant of burden that is incompatible with the modern era.

IV.

The doctrine of precedent is jurisprudentially and constitutionally entrenched in the administration of judicial business. And oral arguments upon a precedent in relation to the facts of each case constitute a critical component of that case. An absence of transcript deprives a case of the discipline mandated upon the conduct of a 19

8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are: (i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the Court. (ii) A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (iii) A factual issue cannot be raised or considered for the first time in a second appeal…. 9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take. Bachhaj Nahar v. Nilima Mandal [AIR 2009 SC 1103 : 2008 (15) SCALE 158]

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judicial proceeding. A judicial proceeding conducted without a pervasive awareness of discipline thrust by precedent must necessarily injure the expectations of a litigant and must also injure the interests of society, by denying certainty to the rule of law.20 V.

An absence of a proper record of the arguments delivered in a given case disables a judge who hears a case but does not conclude the arguments from conveying the progress in that case to a different judge who takes over the subject matter pursuant to a change in the roster. An absence of a proper record of the oral arguments in a given case hinders timely resolution in the event that a delay in adjudication progresses beyond the typical length of a roster. This also results in unduly burdening litigants with costs for counsel who

20

‘…It will not do to decide the same question one way between one set of litigants and the opposite way between another. If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights. Everyone fees the force of this sentiment when two cases are the same. Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the Courts….’ Pg.33-34 Benjamin Cardozo in his treatise, The Nature of the Judicial Process (1921)

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must again brief an incoming judge with the past progress in the case. VI.

A judge’s interaction with the counsel and the counsel’s response thereto constitutes a critical component of every judicial proceeding. Because the words and statements comprising a written pleading are mere inert representations and an interaction between a judge and the counsel exposits the relative understanding, appreciation and evaluation of a written pleading, a written pleading receives its life only during a debate in a courtroom21. The recording of such a debate, and an accurate representation of such debate, is an inevitable requirement for delivery of justice22. A justice-delivery mechanism devoid of such transcript is an unacceptable mode of delivery in a modern age which has seen technology for audiorecording of events rapidly advance for the past 70 years.

VII.

The High Court of Delhi exercises multifarious jurisdictions and petitions filed under Article 226 of the Constitution encompass diverse fields of learning or branches of law. Given the complexity, 21

The evidence supporting this hypothesis is overwhelming. Almost 80 percent of all the justices’ questions refer to arguments that were not raised in these briefs. For specific issues, over 70 percent of policy questions are new, over 95 percent of questions about external actors are new, and almost 80 percent of all questions about institutional rules are new…(pg 126) I turn first to the general (non-issue specific) results. In cases with no amicus participation, only 20 percent of the Court’s total questions focus on arguments initially discussed in the parties’ briefs. The remaining 80 percent of the Court’s questions raise issues that were not addressed in the litigants’ written arguments…. (pg.53,54) Oral Argument and Decision Making on the United States Supreme Court (supra) 22

…However, the learned author referred to the decision in Sengupta Vs. Holms, (2002) EWCA Civ 1104 at (38) and quoted the views of Laws L.J. where the learned Judge held that central place is accorded to oral argument in our common law adversarial system. The learned Judge further said that ...this I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by the judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the center of it (See pages 396 and 397 of the book). SRC Projects Pvt. Ltd v. Commissioner of Commercial Taxes Madras High Court – Writ Appeals 893 of 2008 – 08-Sep-2008 (Division Bench)

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range, and variety of subjects over which rights are disputed before a Judge, it is simply impossible to expect a judge to satisfactorily adjudicate upon a legal claim without subject-wise assistance from a competent and learned counsel23. Any such assistance is generally contained only – or predominantly - in the oral arguments. An absence of transcript of the oral arguments, therefore, unreasonably deprives the judicial proceeding of a very critical resource. VIII.

Because our Constitution declares in Article 141 that the law laid down by the Supreme Court shall be binding on all Courts and Tribunals in India, a litigant before this Court is entitled to insist that this Court must enter a judgment for him as a matter of law by reason of a precedent in his favour. Because the binding value of a precedent is debated only – or predominantly - during oral arguments, a recording of those arguments is essential in order to deter either side from expounding an unacceptable and unfaithful proposition from any precedent24. It is further submitted that in a 23

A Judge will often ask counsel: ‘Do any cases from this Court support your position?’ Counsel should be careful to cite only those cases that support his or her position and to avoid distorting the meaning of a precedent. …Likewise, counsel should be familiar with his or her client’s business. Judges may pose questions about how a product is made, how employees are hired, or how a relevant calculation was made… Counsel should be knowledgeable about what is and is not in the record in the case, and should be familiar with the procedural history of the case. Judges frequently ask counsel if particular matters are in the record. It is helpful if counsel can provide the volume and page where the information is located. Counsel should avoid making assertions about issues or facts not in the record. If counsel is asked a question that will require reference to matters not in the record, counsel should begin the answer by so stating and then proceed to respond to the question, unless advised otherwise by the Judge. Guide for Counsel Presenting Oral Argument to the Ninth District Court of Appeals, United States 24

Section 29.11 Adverse Legal Authority: The duty to reveal adverse legal authority set forth in Model Rule 3.3(a)(3) is long established. Indeed, this paragraph is identical to DR 7-106(B)(1). The same terminology is adapted in Restatement of the Law Governing Lawyers Sec.111(2). Revealing the fruits of one’s own efforts in the law library goes against all instincts of legal partisanship, may damage a client’s legal position, and extends a windfall to less deligent opposing counsel. However, two arguments can be made in support of Rule 3.3a(a)(3). First, Courts must rely on counsel to supply most of the legal argument in litigated cases. If a lawyer deliberately omits adverse authority, there is risk that neither opposing counsel nor the Court will discover the governing law

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scenario where tens of thousands of judgments emanate from a superior Court of Record, a debate about conflicting judgments of the superior Court may very well threaten the timely resolution of a case should one or both sides to a case knowingly misapply precedents25. IX.

Because written pleadings do not delve extensively into the case-law in support of the pleading, it is only to be expected that a discussion about the precedential value of a judgment is explored during oral arguments. Counsel have a duty to the Court to extensively study a and an erroneous decision (that could have been avoided) will result. To be sure, conscientious judges (particularly those with law clerks) often conduct their own backup research, but that is an insufficient protection against error. Second, it is often said that revealing adverse precedent or other authority does not greatly damage the client-lawyer relationship, because the law does not ‘belong’ to the client in the same way that factual information does. Rule 3.3(a)(3) refers to ‘legal authority’, which should be understood to include not only case law precedents, but also statutes, ordinance, regulations, and administrative rulings. Indeed, the duty to reveal the latter kinds of authority is of greater practical significance, precisely because they are less likely to be discovered by the tribunal itself….(pg.29.16) The Law of Lawyering Volume 2 By Geoffery C.Hazard, W.William Hodes, John S.Dzienkowski 3rd Edition, v.2-2000 25

Subsection (a) (2): Failure to disclose legal authority known to be directly adverse to client’s position Rule 3.3(a)(2) (renumbered from 3.3.(a)(3) as a result of the 2002 amendments) requires a lawyer to disclose legal authority in the controlling jurisdiction that is directly adverse to the client’s position, when opposing counsel does not present such authority. See Massey v. Prince George’s County 907 F.Supp.138 (D.Md.1995) (defense counsel deliberately failed to disclose to Court, during summary judgment proceedings, unfavourable controlling authority); In re Thonert, 733 N.E.2d 932 (Ind.2000) (defense lawyer failed to inform Court of adverse decision of state’s highest Court in virtually identical case in which lawyer served as counsel of record). On the question of whether a decision from a controlling jurisdiction is ‘directly adverse’ to a lawyer’s position, the prevailing view is that counsel must cite adverse cases that are ostensibly controlling, even though the lawyer reasonably believes that the decision is factually distinguishable or that the Court will ultimately determine the decision is not controlling. See, eg., Tyler v. State, 47 P.3d 1095 (Alaska Ct.App.2001) (extensive discussion of authorities). See generally Floyd, Candor versus Advocacy: Court’s Use of Sanctions To Enforce the Duty of Candor toward the Tribunal, 29 Ga.L.Rev.1035 (1995) (lawyer’s readiness to cite adverse authority will increase due to Court’s expectation of citation and willingness to impose sanctions for failure to do so); Gilmore, Self Inflicted Wounds: The Duty to Disclose Damaging Legal Authority, 45 Clev.St.L.Rev.303 (1995); Lischkoff, Recent Decisions on Citing Authorities to Courts: Model Rule 3.3(a)(3) of the Model Rules of Professional Conduct, 19 J.Legal Prof. 315 (1994) (Court’s narrow reading of Rule, and resulting failure of lawyers to disclose adverse authority, results in waste of judicial resources and diminished confidence in legal system) (pg.334)

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judgment cited as precedent, and to offer a honest assessment of judgments that seemingly conflict each other26. Discipline and truthfulness in any debate upon the precedential value of judgments is made possible by an accurate transcript of the oral arguments. Where the arguments involve a discussion of the case law and are spread between several days, a transcript of the record is absolutely essential in order to ensure discipline and truthfulness to such discussions. X.

Further, a party to a judicial proceeding has an inherent right to information about such proceeding and the consequent right to preserve such information. This right is not fully honoured as long as a party must reconstruct a judicial proceeding by employing his own memory or that of his counsel – given that generally, most individuals, two days after first exposed to fresh information, recall no more than 30 percent of such information.27. Further, given the Annotated Model Rules of Professional Conduct - By Center for Professional Responsibility (American Bar Association) 2003 Edition 26

This disclosure requirement includes not only case law but also statutes. See Time Warner Entm’t Co. v. Does Nos.1-2, 876 F.Supp.407 (E.D.N.Y 1994) (lawyers for copyright and trademark owners seeking ex parte seizure of allegedly infringing products violated duty to disclose adverse authority to Court by asking that private investigators carry out order when lawyers knew prior case law and Lanham Act permitted only marshals to conduct searches). According to paragraph (4) of the Comment to Rule 3.3. “the underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.” See also Smith v Scripto-Takai Corp., 170 F.Supp.2d 553 (W.D.Pa.2001) (Rule serves purpose of assisting Courts, which rely upon counsel to supply correct legal authorities to avoid erroneous legal decisions; moreover, revealing adverse law does not harm lawyer-client relationship in same way that revealing adverse factual information does). (pg.334-335) Annotated Model Rules of Professional Conduct - By Center for Professional Responsibility (American Bar Association) 2003 Edition 27 Most forgetting tends to occur immediately after memorization. Herman Ebbinghaus (1885) famously tested his own memory at various intervals after learning…. The Ebbinghaus curve shows less than 30 percent remembered after only 2 days have passed…(pg.264) …Memory decay appears to be a factor in the loss of sensory memories. Such fading also appears to short term memory. Information stored in STM seems to initiate a brief flurry of activity in the brain that quickly dies out. Short-term memory therefore operates like a ‘leaky bucket’: New information constantly pours in, but it rapidly fades away and is replaced by still newer information….(pg.266)

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possibility of different counsel appearing at different stages of the same judicial proceeding and of different appellate counsel, it becomes absolutely essential that a party’s need for an accurate reconstruction of a judicial proceeding is fully honoured. XI.

Every attorney representing any party in a judicial proceeding has an inviolable duty to accurately report his participation to the party, and this duty is not adequately discharged as long as a transcript of the judicial proceeding is unavailable to the party or to his attorney28.

XII.

The referential value of an ‘unofficial’ transcript of oral arguments derived in the absence of an official transcript is substantially and exponentially greater than a complete absence of transcript of oral arguments. A judicial body that already generates an ‘official’ transcript is legally entitled to say that an ‘unofficial’ transcript serves no purpose – however, a judicial body that expresses no inclination to generate its own official transcript cannot, in any honesty, frown upon the bona fide effort of a litigant to compensate for the Court’s own failure to generate an ‘official’ transcript. A judicial body that so frowns – in effect - merely asserts that it will reform at its sole discretion – a notion wholly opposed to the principles of democracy and liberty of thought.

XIII.

The relief sought by the petitioner does not insist upon any participant to a judicial proceeding to alter his/her conduct in any manner howsoever. That is, lawyers, arguing counsel, parties, members of the public, Court officers, Presiding Judges, Judges, other staff members of the judiciary are not required to conduct Introduction to Pyschology: Gateways To Mind And Behaviour. 12th Edition, 2008. Dennis Coon and John O Mitterer. 28

A lawyer must promptly convey important information about the client’s matter. See, e.g., Shalant v. State Bar, 658 P.2d 737 (Cal.1983)… (pg. 53) Annotated Model Rules of Professional Conduct - By Center for Professional Responsibility (American Bar Association) 5th Edition, 2003.

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themselves in any manner different from what is the case at present. The petitioner is, therefore, entitled to the relief sought for in this petition as a matter of law in view of the fact that he seeks to impose no burden whatsoever upon any participant to a judicial proceeding before this Hon’ble Court. XIV.

The judgment and orders passed by a Court are always made in a given case and the judicial power of a Court is no more than the power to adjudicate upon concrete controversies brought before it for adjudication. Accordingly, in the pursuit of its judicial power, this Hon’ble Court is effectively under a duty to consent to an arrangement that is bound to render the adjudication more timely and efficient, as sought by the petitioner.

XV.

Article 21 of the Constitution of India does not stop at mere adherence to the stated ‘Rule of law’. If adherence to the statutes and procedure established by the law constitutes compliance with Article 21, the very concept of ‘judicial review of legislative action’ would be rendered nugatory. Yet, ‘judicial review of legislative action’ is fully entrenched into the judicial business of High Courts founded under Article 214 of the constitution of India. A High Court that refuses to reform its procedure breaches the expectation of a litigant who comes before it for the resolution of his legal disputes. A judicial body that is reluctant to reform itself is under a constitutional duty to afford relief to a litigant who seeks to mitigate the suffering brought about by the reluctance of the Court to reform itself. Such a duty is clearly founded under Article 21 of the Constitution of India.

XVI.

That the petitioner would be deprived of his entitlement to a timely and transparent resolution of his legal disputes brought before this Hon’ble Court if he is prevented from non-intrusively audio-recording those judicial proceedings that involve him. Such a deprivation fully

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frustrates the objective behind Article 21 of our Constitution. As such, an effective compliance, under these circumstances, with Article 21 of the Constitution necessitates the grant of relief sought by the petitioner as under:

PRAYER

In view of the circumstances described above, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to :

i)

declare that the petitioner is entitled to non-intrusively audiorecord judicial proceedings that involve his participation before this Hon’ble Court and to so record either by himself or through his Advocate-on-record ;

ii)

issue a Writ of Prohibition or a Writ of any other nature or description to direct Respondent Nos. 3 and 4, the Registrar General and the Registrar of this Hon’ble Court, to not interfere with the act of non-intrusive audio-recording by the petitioner or his advocate-on-record in respect of judicial proceedings that involve the petitioner; and to

iii)

issue any other order or direction in the interest of justice, equity and in furtherance of or to secure any other objective or purpose as this Hon’ble Court may deem fit and proper in the circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONERS SHALL AS IN DUTY BOUND EVER PRAY.

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Filed On :

Deepak Khosla

26-10-2009 NEW DELHI

PETITIONER Through : K.V.DHANANJAY & SHEKHAR DEVASA ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION No._____________OF 2009 IN THE MATTER OF: DEEPAK KHOSLA

……….PETITIONER Vs.

UNION OF INDIA & ORS.

……RESPONDENTS

AFFIDAVIT OF MR. DEEPAK KHOSLA, s/o Mr. R.P. KHOSLA, AGED 50 YEARS, R/O 218 SECTOR XV-A, NOIDA 1.

That I am the petitioner, and as such, I am conversant with the facts of the present case and as such competent to depose thereto.

2.

That I have read and understood the contents of the accompanying petition/application and state that the facts stated therein are true and correct to the best of my personal knowledge and belief, or are as per my understanding and which I verily believe, whilst the legal submissions are based on legal advice received and/or researched by me and believed to be correct.

3.

That the annexures to the petition are true copies of their originals.

4.

That the contents of the accompanying petition/application may kindly be read as part of the present affidavit, and the contents of which are not being repeated herein for reasons of brevity.

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DEPONENT VERIFICATION : Verified at _______________ on this ___ day of __________ 2009, that the contents of my aforegoing affidavit are true and correct to my knowledge.

DEPONENT

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI Interlocutory Application No. ____________ of 2009 IN Civil Writ Petition No. ______________ of 2009 Between: Deepak Khosla

PETITIONER

And Union of India And Ors. APPLICATION

UNDER

RESPONDENTS SECTION

151

OF

THE

CIVIL

PROCEDURE CODE SEEKING INTERIM INJUNCTION UPON THE CONDUCT OF RESPONDENT Nos. 3 & 4 IN REGARD TO NON-INTRUSIVE

AUDIO-RECORDING

OF

JUDICIAL

PROCEEDINGS INVOLVING THE PETITIONER.

To, The Hon’ble Chief Justice and His companion Judges of the Hon’ble High Court at New Delhi. The Humble petition on behalf of the Petitioner above named:MOST RESPECTFULLY SHOWETH: 1. The Petitioner has filed the accompanying writ petition under Article 226 of the Constitution of India for the enforcement of the fundamental right of the petitioner, guaranteed under Article 21 of the Constitution, to a timely and transparent resolution of his legal disputes brought before this Hon’ble Court ; for a declaration of entitlement

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to non-intrusively audio-record relevant judicial proceeding, and for the issue of corresponding restraint upon the officers of this Court. 2. The instant Interlocutory Application is filed in respect of the above Writ petition for the purpose of securing interim injunction in the cause stated in the writ petition.

3. The facts, averments, grounds in support and the relief claimed thereof in the aforesaid Writ petition may kindly be treated as part of this interlocutory application. 4. The petitioner proposes to non-intrusively audio-record forthwith, judicial proceedings in matters that involve him before this Hon’ble Court. The petitioner seeks an ex-parte interim Order restraining Respondent No. 3 and / or No. 4 from interfering with the proposed action of the petitioner hereafter. 5. The petitioner has extensively studied the technology and the infrastructure involved in equipping a court-room with audio

transcription

technology.

For the purpose of

alleviating any concern of this Hon’ble Court in allowing court-transcription, the Petitioner hereby undertakes, most humbly, to indemnify (or to bear, if so directed) this Hon’ble Court all the costs that it may incur in testing the installation of an audio-transcription equipment in one court room that hears one or more of the cases that involve the petitioner.

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6. The indicative costs involved in equipping an individual court-room with official audio transcription equipment is as under:

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Sl. No. 1.

Details of inputs required A PC in the Court concerned 1 Recording software . installed in the PC 2

3.

A microphone installed in the court connected to the PC. 2 Sub-total . 4

Typical vendor

INDICATIVE COST In US$ INR

Any PC manufacturer, $ 800 such as IBM, Dell, HP, HCL, etc. - Dragon $ 225 - Quikscribe - FTR - NCH - Polycom $ 200 - CrownAudio

Add : Project 5. consultancy, installation, commissioning, misc. hardware etc. etc 3 GRAND TOTAL .

Rs. 40,000

Rs. 10,000

Rs. 10,000

Rs. 60,000

-

Lumpsum

Rs. 40,000

Rs. 1,00,000

In place of a PC, if a laptop is used, the already-configured laptop with its mike can be instantly transported on a moment’s notice from any one court-room to another court-room. An alternative to the above computer-based solution is a device called the “Sennheiser Reporter’s Kit” which costs US$ 1,899 (approx. Rs. 90,000), and is a complete, integrated, ready-made tool for a Court Reporter approved by the Court system of the United States, whereby the Court reporter can record, and then proceed to transcribe, the court proceedings.

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The brochures of all these options are part of Appendix “H”, from which this Hon'ble Court may be pleased to peruse the extreme simplicity and versatility of the different choices of equipment available, as well as the number of progressive Courts that are already using these equipments. 7. The petitioner further submits that while evaluating the first option of the total costs to be incurred for the purpose of preparing an individual court-room for official transcription, the cost of the PC may notionally be deleted in view of the fact that every court-room in this Hon’ble Court in which judicial business is transacted is already equipped with a computer. Accordingly, the total cost of equipping all the court-rooms in the Delhi High Court would not exceed Rs. 20 lakhs in total. The said sum is less than half-percent of the

annual

spending

by

this

Hon’ble

Court.

(Rs.42,45,47,490 is the spending for the financial year 2007-08). 8. The petitioner has a strong likelihood of success on merits in respect of the cause advanced in the present writ petition. Whereas, no prejudice or harm shall be caused to, nor can be claimed by, the Respondents. Thus, the balance of convenience clearly lies in favour of the petitioner. 9. The matter assumes great urgency in view of the fact that the petitioner has matters on frequent dates in October and November

2009

before

this

Hon'ble

Court,

whose

proceedings he urgently needs to record in order to ensure that his position in judicial proceedings is not jeopardised.

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10.

The present application is tendered in good faith, and is

made in the interests of justice and equity .

PRAYER In light of the above facts and circumstances, it is humbly prayed that this Hon’ble Court may be pleased to: i)

to issue an ex-parte interim-injunction restraining Respondent Nos. 3 and/or 4 (the Registrar General and/or

Registrar

of

this

Hon’ble

Court)

from

interfering with the act of non-intrusive audiorecording by the petitioner or by his advocate-onrecord in respect of judicial proceedings that involve the petitioner before this Hon’ble Court; In the alternative : Allow the petitioner, at his own cost and risk, to equip any one courtroom of this Hon'ble Court with the appropriate equipment and software for audio-recording of proceedings, equipment to be retained by this Hon'ble Court for the period of time it, as per its sole discretion, deems fit, and to be used to audio-record his own proceedings (and/or those of others, should this Hon'ble Court deem it appropriate), whether free of charge, or subject to any reasonable costs to be demanded and/or recovered by this Hon'ble Court. ii)

Pass such other order(s) or direction(s) as may be deemed

just

and

proper

circumstances of the case.

in

the

facts

and

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AND FOR THIS ACT OF KINDNESS THE PETITIONERS SHALL AS IN DUTY BOUND EVER PRAY. Filed On : 26-10-2009 NEW DELHI

Deepak Khosla PETITIONER Through : K.V.DHANANJAY & SHEKHAR DEVASA ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180

-59-

IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION No._____________OF 2009 IN THE MATTER OF: DEEPAK KHOSLA

……….PETITIONER Vs.

UNION OF INDIA & ORS.

……RESPONDENTS

AFFIDAVIT OF MR. DEEPAK KHOSLA, s/o Mr. R.P. KHOSLA, AGED 50 YEARS, R/O 218 SECTOR XV-A, NOIDA 1.

That I am the petitioner, and as such, I am conversant with the facts of the present case and as such competent to depose thereto.

2.

That I have read and understood the contents of the accompanying petition/application and state that the facts stated therein are true and correct to the best of my personal knowledge and belief, or are as per my understanding and which I verily believe, whilst the legal submissions are based on legal advice received and/or researched by me and believed to be correct.

3.

That the annexures to the petition are true copies of their originals.

4.

That the contents of the accompanying petition/application may kindly be read as part of the present affidavit, and the contents of which are not being repeated herein for reasons of brevity.

DEPONENT VERIFICATION : Verified at _______________ on this ___ day of __________ 2009, that the contents of my aforegoing affidavit are true and correct to my knowledge.

DEPONENT

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI Interlocutory Application No. ____________ of 2009 IN Civil Writ Petition No. ______________ of 2009 Between: Deepak Khosla

PETITIONER

And Union of India And Ors. APPLICATION

UNDER

RESPONDENTS SECTION

151

OF

THE

CIVIL

PROCEDURE CODE SEEKING EXEMPTION FROM FILING CERTIFIED COPIES OF ORDERS AND CLEAR / LEGIBLE COPIES OF THE DOCUMENTS, ETC. To, The Hon’ble Chief Justice and His companion Judges of the Hon’ble High Court at New Delhi. The Humble petition on behalf of the Petitioner above named:-

MOST RESPECTFULLY SHOWETH: 1.

That the Petitioner/applicant has this day filed the above mentioned Petition before this Hon’ble Court in view of the material irregularity committed by the persons named therein and harming the applicant’s interests. The facts and circumstances relevant for the purposes of the present application are set out in detail in the said petition and, for the sake of brevity and to avoid repetition,

the Petitioner /

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applicant craves leave to refer to and rely thereupon without specifically incorporating the same hereinafter. 2.

That the Petitioner / applicant has filed documents such as copies of Court orders, of letters, correspondence, emails, etc. which are not certified / attested copies, and/or clear copies and/or the margin of 4 cms has not been left.

3.

That owing to paucity of time and other constraints, it has not been possible to obtain the certified copies of the orders.

4.

That owing to a similar paucity of time, and other constraints, it has not been possible to file the typed copy of the relevant documents as they are copies of emails, printed forms, registers, licences / approvals , etc., etc. or to leave the prescribed space of 4 cms.

5.

That we undertake that we shall not rely on any document during the course of hearing that may be illegible. PRAYER

It is therefore most respectfully and humbly prayed that this Hon’ble Court may be pleased to :a) Allow this Application and the documents at Annexures to be taken on record as such ; b) And pass such other order or further order or orders as this Hon’ble Court may deem fit and proper under the circumstances of the case.

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FOR SUCH ACT OF KINDNESS THE PETITIONER SHALL, AS IN DUTY BOUND, EVER PRAY.

Filed On :

Deepak Khosla PETITIONER

26-10-2009 NEW DELHI Through : K.V.DHANANJAY & SHEKHAR DEVASA ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION No._____________OF 2009 IN THE MATTER OF: DEEPAK KHOSLA

……….PETITIONER Vs.

UNION OF INDIA & ORS.

……RESPONDENTS

AFFIDAVIT OF MR. DEEPAK KHOSLA, s/o Mr. R.P. KHOSLA, AGED 50 YEARS, R/O 218 SECTOR XV-A, NOIDA 1.

That I am the petitioner, and as such, I am conversant with the facts of the present case and as such competent to depose thereto.

2.

That I have read and understood the contents of the accompanying petition/application and state that the facts stated therein are true and correct to the best of my personal knowledge and belief, or are as per my understanding and which I verily believe, whilst the legal submissions are based on legal advice received and/or researched by me and believed to be correct.

3.

That the annexures to the petition are true copies of their originals.

4.

That the contents of the accompanying petition/application may kindly be read as part of the present affidavit, and the contents of which are not being repeated herein for reasons of brevity.

DEPONENT VERIFICATION : Verified at _______________ on this ___ day of __________ 2009, that the contents of my aforegoing affidavit are true and correct to my knowledge.

DEPONENT

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IN THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL JURISDICTION CIVIL WRIT PETITION NO._____________OF 2009 [Under Article 226 read with Articles 13, 14, 19(1)(g), 20, 21, 39(a), 44 and 50, read with Articles 51A(b), 51A(h) and 51A(j) of the Constitution of India, read with Section 122 of the Code of Civil Procedure (1908), read with Section 7 of the Delhi High Court Act, read with Rules 14 and 18 of the Delhi High Court (Original Side) Rules, 1967, read with the Contempt of Courts Act, 1971].

IN THE MATTER OF: DEEPAK KHOSLA

…….PETITIONER Vs.

UNION OF INDIA & ORS.

….RESPONDENTS

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA & OTHER ENABLING PROVISIONS OF LAW FOR APPROPRIATE MEASURES FOR CREATION OF A MORE MODERN, EFFICIENT, EQUITABLE AND FAIR ADMINISTRATION OF JUSTICE. INDEX Sl. No.

Particulars

Court Fee

Page No.

1 Notice of Motion. .

1

2 Urgent application. .

2

3 Memo of Parties. . 4 Synopsis / List of dates. . 5 WRIT PETITION ON BEHALF OF THE . PETITIONER UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, ALONGWITH AFFIDAVIT.

3–4 5 – 11

12 – 50

6 IINTERLOCUTORY APPLICATION under . Section 151 of the CPC, praying for interim directions, alongwith affidavit.

51 – 56

7 Application under Section 151 of the CPC, praying for

57 - 60

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exemption from filing certified copies, with affidavit. 8 Annexure A : Brochure of a Samsung recorder. .

61 -

9 Annexure B :. Transcript of oral arguments before . the Hon’ble Supreme Court of the United States in the case of William Crawford v. Marion Country Election Board 1 Annexure C : Annual Report for this Hon’ble Court 0 published for the Financial Year 2007-2008 . 1 Annexure D : Prior decisions of the Supreme Court 1 of India in cases decided between 2001 to 2006 . 1 Annexure E : RTI request dated 26-5-2009. 2 . 1 Annexure F : RTI reply dated 20-7-2009. 3 . 1 Annexure G : Report in the Asian Age dated 2-104 2009 on the inauguration of the Supreme Court of . England 1 Annexure H (Colly.) : Various items of techno5 commercial literature on options relating to . recording / Transcription of court proceedings. 1 Annexure I (colly.) : News article on the China milk 6 scandal, and misc. other news articles. . 1 Vakalatnama 7 .

Filed On : 26-10-2009

Deepak Khosla PETITIONER

NEW DELHI Through : K.V.DHANANJAY & SHEKHAR DEVASA

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ADVOCATES FOR THE PETITIONER 127 Old Lawyers Chambers, Supreme Court, New Delhi 110 003 099 029 09390 / 98 684 64180