Privacy, in its simplest terms, allows each human being to be let alone in a core which is inviolable. The expression “let me alone” explains privacy in its essence. The legal battle for protection of privacy as a fundamental right started in 1954 when the Supreme Court (M.P.Sharma’s case) held that the Constitution of India did not recognize the right to privacy. The question was again raised in 1964 when the Apex Court reiterated the earlier view (Kharak Singh’s case). Subsequently, the Apex Court in certain decisions (Govind-1975; R.Rajagopal-1994; PUCL-1997) recognized the right to privacy as a derivative right being part of the fundamental right to life and liberty guaranteed under Article 21 of the Constitution. Hence, a conflict of opinion arose between the verdicts rendered by the Apex Court. In order to resolve the conflict, the issue was taken up in Puttaswamy-1 (2017) by a Bench of nine Judges. By a landmark judgment, the Supreme Court held that the right to privacy was a basic and natural right inhering in every human being and thus is a fundamental right being part of the right to life and liberty.
The judgment in Puttaswamy-1 is amongst the most significant judicial verdicts rendered by the Apex Court since India became independent. Privacy is an invaluable right for every citizen to enjoy against State and non-State entities. With the invasion of the Internet in our lives, the right to informational privacy which is specie of the right to privacy assumes even greater importance in our lives. A very large section of the Indian population uses the Internet to interact, communicate, and transact for availing services and making online purchases.
The right to privacy is not absolute and can be intruded upon for legitimate State interests such as for investigation of certain serious criminal offences. However, the intrusion must be for real and legitimate objectives and should not be beyond what is necessary for investigative purposes. But who decides the legitimacy and issues of proportionality etc.
Given the significance of the right to privacy of a citizen and the legitimate State interest of finding the truth in criminal investigations, the question I seek to address herein is how to enforce the right to privacy against law enforcement agencies such as the police, ED, DRI, and CBI. I have taken into consideration certain situations here, hypothetical and actual, in order to make out a case for establishing independent privacy tribunals to strike a fine balance between the right to privacy and legitimate State interest of getting to the bottom of the truth in criminal investigations.
Let’s start with Rule 4(2) of the Intermediary Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules, 2021” in short). As per this Rule, the Competent Authority can order a significant social media intermediary (WhatsApp, Facebook etc) to identify the first originator of information for the purposes of prevention, detection, prosecution or punishment of offences related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years. The ambit of Rule 4(2) is very broad and hence ought to be implemented with extreme care and caution so that the right to privacy is finely balanced with finding the truth in criminal investigations pertaining to the above offences.
The implementation of Rule 4(2) has been entrusted to Courts and the Competent Authority. Courts in India, as we all know, are independent and have an understanding of the law and are expected to implement the Rule in letter and spirit keeping in view the balance between the right to privacy and legitimate State interest of finding the truth in criminal investigations. However, the question is whether the Competent Authority can play such a role as the Courts would. Who is the Competent Authority? The Competent Authority, as per the said Rules, constitutes of the Secretary in the Ministry of Home Affairs, in case of the Central Government; or the Secretary in charge of the Home Department, in case of a State Government or Union Territory, as the case may be. In unavoidable circumstances, such order may be issued by an officer, not below the rank of Joint Secretary of the Government of India, who has been duly authorized by the Competent Authority. The“Review Committee” means the Review Committee constituted under rule 419A of Indian Telegraph Rules, 1951. Hence, as under the Telegraph Act, 1885 read with Rule 419A of the Telegraph Rules, 1951, the Competent Authority under the Intermediary Rules, 2021 consists of a bureaucracy under a Ministry of the Government.
In my view, there are justifiable reasons for replacing the Competent Authority with an independent privacy tribunalheaded by retired judges of the Supreme Court and High Courts.
Firstly, the Competent Authority consists of bureaucrats who may not have a clear understanding of the nuances and scope of the right to privacy and the requisite balance between the right to privacy and legitimate State interest of finding the truth in criminal investigations. Moreover, the bureaucracy could possibly lean in favor of requests by law enforcement agencies rather than be protective about the privacy of citizens. A case is thus made out for establishing independent privacy tribunals consisting of retired High Court and Supreme Court Judges, which should be entrusted with the task of deciding upon the requests of law enforcement agencies to social media intermediaries to reveal the first originators of information pertaining to the offences stipulated in Rule 4(2).
Another ground in favor of independent privacy tribunals for deciding upon requests of law enforcement agencies to social media intermediaries to reveal the first originators of information pertaining to the specified offences, is the likelihood of allegations of bias by opposition parties as to the legitimacy of such requests and decisions of bureaucrats (Competent Authority) thereon. Many of the privacy disputes are likely to behigh voltage slugfests between political parties. And opposition parties are likely to allege bias against the Competent Authority.
The Pegasus case is a classic one where the opposition parties wanted an independent authority to probe into the issue whether the Government agencies were involved in the snooping using the Pegasus technology. The Apex Court has appointed an independent body of experts to probe into the allegations. In fact the Government of India had itself stated before the Apex Court that it would set up an independent committee of experts to inquire into the allegations of snooping. The Apex Court has decided in favor of an independent body of experts to conduct the inquiry into the Pegasus dispute between the Government and the opposition parties. The Court has selected the experts to hold the inquiry. The Pegasus case demonstrates that all stake-holders including the Government and opposition parties are in favor of an independent body of experts to inquire into the alleged violation of the right to privacy. Above all, the Apex Court has formed a body of independent experts to find the truth in the allegations of snooping. In my view, the Competent Authority appointed under the Information Technology Act, 2000 and the Telegraph Act, 1885 has lost its significance in today’s scenario when the right to privacy has been elevated to the status of a basic right inhering in every human being and thus as a fundamental right being part of the right to life and liberty. What is the point of raising the right to privacy to the status of a fundamental right if it cannot be enforced by an independent tribunal comprising of retired judges? Why should this be left to the bureaucracy of the country that may not understand the nuances and significance of the right to privacy apart from being vulnerable to allegations of disregarding privacy of citizens and leaning in favor of directions by law enforcement agencies to social media intermediaries to reveal the first originators of information pertaining to the specified offences under investigation? A case is thus made out for amendments in the Intermediary Rules, 2021 for replacing the Competent Authority comprising of bureaucrats with a privacy tribunal comprising of retired judges of the High Court and Apex Court. WE THE PEOPLE OF INDIA must stand up for enforcement of the right to privacy by an independent privacy tribunal rather than our right being decided by Competent Authority alias the bureaucracy. Disputes pertaining to violations of the right to privacy of citizens are set for an exponential rise in the times to come, hence, the duty to protect the right must be entrusted to an independent privacy tribunal, otherwise, the fundamental right to privacy may become illusory.
Vivek Sood , Senior Advocate
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Evolution of the IAS
Will it survive?
It was unprecedented but it happened. The Prime Minister chose to vent his ire on the Indian Administrative Service (IAS) and criticized the premier civil service in no uncertain terms. This was done in the Parliament. Only he can explain why he said what he said. Ironically the Prime Minister’s Office (PMO) is run primarily by the IAS. He even chose a non-economist IAS officer over a known non-IAS economist to head the Reserve Bank of India. So, can we conclude that the days of the IAS are over?
During the days of the “Raj”, the bureaucracy was used as a tool to perpetrate a regime that could enable the rulers to collect revenue and to maintain law and order to sub serve the economic interests of the crown. It was obvious that the top echelons of the Indian bureaucracy, namely the Indian Civil Service and Indian Police were created to fulfill these objectives. To begin with, the entry to these services was restricted to the British. When the doors were finally opened to the ‘locals’, the process of recruitment was such that not many Indians could afford to give it a try. However, with the dawn of independence, the recruitment system underwent a change, as did the eco-political environment. Thus, as the objective conditions went into a transitional phase, so did the subject, the bureaucrat. It was obvious that these important tools of socio-economic engineering could not remain insulated from the churning that was taking place around him. In fact, a great debate took place to ascertain whether these instruments were equipped and motivated to carry out the task of building a new India. Finally, thanks to the stirring defense by Sardar Patel, the two services survived and they were re-christened as the Indian Administrative Service and the Indian Police Service. It was felt that the tools were inherently competent to handle and build the newly born nation.
The objective conditions kept changing during the 70 years of Indian independence as democracy found roots in the periphery of Indian polity as well. The dominant role of the bureaucrat underwent a sea change. This transition has been slow and painful as the bureaucrat gradually condescended from the ivory tower into the reality of Indian democracy. There was now being sought a different type of ‘commitment’, which on occasions got degenerated into a demand for commitment to persons rather than policies. The steel frame came under tremendous pressure during the dark days of emergency and the chaos that followed. The bureaucracy had to live with stable autocracy and unstable political chaos.
The objective socio-political conditions too underwent a transformation. If ‘emergency’ was a watershed in terms of political history of independent India, the ‘Mandalisation’ of Indian society was the one in the socio-political dimension. The bureaucrat had to contend with these changes.
From the controlled economy and direct participation in the economic development of the country during the first three decades to a move towards abolition of ‘licence-permit raj’, the transition has not been a very easy one. The role itself is undergoing a change from a pure regulator to that of a facilitator. ‘Liberalization’ and ‘globalization’ became the key words during 1990s and bureaucracy had to redefine its role in this fast-changing economic environment.
Bureaucracy in general and the IAS in particular face different set of challenges now. The “war” between the Centre and the States being one of them. This “war” threatens the essence of All India Services as unusual demands are being made on the officers to side with one ‘faction’ or the other. The commitment being sought is of a different nature that threatens the entire edifice. What happened in the case of West Bengal Chief Secretary not being allowed by the Chief Minister to attend the meeting convened by the Prime Minister is one of the many examples that sets everyone thinking.
Some in the IAS are themselves responsible for making it difficult for the service. Increased awareness amongst the common man about their rights and the ability to highlight every misdemeanour in the social media makes it difficult for a civil servant to get away with such actions. It is not that such misdemeanours didn’t happen earlier as some Raos of the service would like the world to believe. The fact is that not all that happened earlier got to be known.
Another development relating to the number of civil servants, primarily the IAS and the IPS, is in the context of their joining politics immediately after retirement (some are seen to be doing so even while in service). This has seriously impacted the perception about the objectivity of these services. Pliability, instead of honesty and efficiency, is seen as the primary determinant for selecting officers for critical posts.
Almost seven decades have gone by and we now witness re-emergence of the debate on whether the Indian Administrative Service has served the purpose for which it was constituted and whether there is a need to continue with this elite service. The jury is still out. It will perhaps be debated for a few more years before the final verdict is announced. Perhaps the verdict will still not be announced. However, this time around there is no Sardar Patel. What will ultimately clinch the issue will be the performance of the individuals who constitute this group. It will depend on their capability to evolve as professionals in the process of development, on their resolve to resist petty temptations for temporary gains, on whether they are in demand on account of their competence and fair play. In a market-driven economy, they will survive if they add value. It will also depend on whether the IAS gets to be known by the likes of M N Buch, B K Chaturvedi, Yogendra Narain, J S Deepak, Asheesh Singh, or by those who despite being in minority are bringing a bad name to the service on account of their manipulative skills and high visibility. And, it will finally depend on whether the powers-that-be allow the former category of officers to thrive.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
Will Shiv Sena be able to stop Shinde’s arrow?
Political upheaval should not impede development; it is very important to pay special attention towards farmers.
Last week, I aired my anguish over the turn of events in the politics of Maharashtra through this column. My distress was not about any particular political party at all. My approach has always been that the common people should get relief by way of development. It has been the feeling of the common man that in the last two and a half years, most of the development works, other than Covid management, have come to a standstill. The common man has nothing to do with politics. He needs development. Now that the political earthquake has settled down a bit, my only expectation from the ruling party and the opposition is that the development works should not stop.
There was speculation about the sudden earthquake in the politics of the state, but no one had any apprehension that the dice would turn like this. No one would have imagined that BJP would crown Eknath Shinde as the chief minister of Maharashtra and Devendra Fadnavis would return to power as the deputy chief minister! Actually, all this is part of the BJP’s far-reaching strategy. BJP has always raised the issue of dynastic politics and attacked such parties across the country where the show is being managed by one family. The attack on Shiv Sena can be called part of this strategy. However, the Shiv Sena of Uddhav Thackeray had crossed swords with Prime Minister Narendra Modi, BJP’s Chanakya and Union home minister Amit Shah and Devendra Fadnavis.
Suddenly, the rug was pulled from under Shiv Sena. When the strategy to trap Sena was being formulated, no one got any inkling about it. The MLAs who first reached Surat and then Guwahati with Eknath Shinde had no idea that the BJP would make Shinde the chief minister. Devendra Fadnavis announced that he will not be a part of the government with Shinde as the chief minister but subsequently joined it after the BJP announced its participation in the new government. This sudden turnaround took everyone by surprise because people were assuming that Fadnavis would be the chief minister and Shinde would be his deputy. After this, there was a consultation between Prime Minister Narendra Modi and Amit Shah, and Fadnavis was asked to join the government because by doing so he would be able to help Shinde more. Moreover, participation in government gives access to the entire machinery and files. In this way, the BJP released the arrow and hit the bull’s-eye. The BJP tread so cautiously only to ensure that it is not seen as power-hungry and at the same time Uddhav Thackeray does not get sympathy. By making a Maratha chief minister, the BJP has tried to break the ground of Sharad Pawar’s politics as well. Shinde is originally from Satara and Thane has been the hub of his politics. The western Maharashtra region he hails from is a stronghold of the Nationalist Congress Party. Eknath Shinde will certainly make a dent into the NCP vote base there and weaken it.
There should be no hesitation in saying that the Shiv Sena stands scattered as of now. The civic polls for Mumbai, Thane and Navi Mumbai are round the corner. After that, the Lok Sabha elections of 2024, then the Assembly elections are to be held. In such a situation, the path is not going to be easy for Thackeray’s Shiv Sena. The MLAs left with the splintered party are mostly from Mumbai. Now the fight is going on to establish who retains Shiv Sena? Who will claim the bow and arrow? Who will be the real successor of Balasaheb Thackeray? And the biggest question is who will finally prevail? Uddhav Thackeray has made a move. He has ousted Eknath Shinde from the party but it has to be kept in mind that Shinde is the chief minister of the state at present. He enjoys a mass base and is a generous personality. Uddhav Thackeray cannot afford to underestimate him.
While stepping down from the post of the chief minister, Uddhav Thackeray issued a number of GRs in the last few days. Governor Bhagat Singh Koshyari had even sought an explanation for that. On his way out, the Thackeray government changed the name of Aurangabad to Sambhaji Nagar, Osmanabad to Dharashiv and Navi Mumbai airport to DB Patil airport. The NCP and Congress did not even protest! Once the governor issues the order to prove the majority, the government ceases to have the right to make decisions. Therefore, these decisions are legally invalid. It is obvious that the Thackeray government did this to create a crisis for the BJP as the BJP has also been in favour of renaming Aurangabad and Osmanabad. However, even BJP had not taken any decision in this regard during its five-year tenure and the Thackeray government had also not taken a decision in its tenure of two and a half years. Thackeray made the move at the last moment.
However, this politics will continue. But the main issue is that the development works of people’s importance should not stop, irrespective of the nature of politics and the intensity of the resultant earthquakes. Right now, the farmers are a worried lot all over the state. The seeds sown have gone waste in the absence of rain. Manure has been wasted too. Banana, pomegranate, grape and orange orchards have suffered heavy damage. Under the circumstances, it is very important for the government to pay special attention towards the farmers. The farmers should get all kinds of help. The pace of development works which have been stalled should be accelerated. To improve the deteriorating economic situation after Covid, substantial efforts are needed. The government needs to pay serious attention towards these issues, keeping aside politics!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
The nature of politics is such that it is never at peace. The one who is in power and the one who is out, both keep strategising. Who gives in to whom completely depends on the political manoeuvring and shrewdness. Right now, the million dollar question is will Shiv Sena be able to stop Shinde’s arrow? Nevertheless, the most important thing is that the development works should continue unhindered in the state.
Cancellation of bail cannot be limited to the occurrence of supervening circumstances: SC
It would be very pertinent to note that the Apex Court in a notable judgment titled Deepak Yadav vs State of UP in Criminal Appeal No. 861 of 2022 (Arising out of S.L.P (Crl.) No. 9655 of 2021) pronounced on 20 May, 2022 has minced just no words to hold unambiguously that, “Cancellation of bail cannot be limited to the occurrence of supervening circumstances.” We thus see that the Bench of Apex Court comprising of CJI NV Ramana, Justice Krishna Murari and Justice Hima Kohli observed so while it allowed the appeal against a judgment of the Allahabad High Court which granted bail to a murder accused. It merits mentioning that the Bench while setting aside the bail observed that the High Court has not taken into consideration the criminal history of the accused, nature of crime, material evidences available, involvement of the accused in the said crime and recovery of weapon from his possession. The Court rightly added that the cancellation of bail cannot be limited only to the occurrence of supervening possibilities.
At the outset, this brief, brilliant and balanced judgment authored by Justice Krishna Murari for a Bench of Apex Court comprising of CJI NV Ramana, himself and Justice Hima Kohli sets the pitch in motion by first and foremost putting forth in para 2 that, “The present appeal is directed against the judgment and order dated 22.10.2021 passed by the High Court of Judicature at Allahabad, Lucknow Bench (hereinafter referred to as “High Court”) in Bail No. 11848 of 2021 filed by Respondent No.2 – Accused with a prayer to release him on bail in Case Crime No. 16 of 2021 registered at PS Para, Lucknow under Sections 302 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) during pendency of trial. By the said judgment, the High Court granted bail to Respondent No.2/Accused on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the trial court subject to certain conditions.”
To put things in perspective, the Bench then envisages in para 3 that, “Briefly, the facts relevant for the purpose of this appeal are that the Appellant/Informant Deepak Yadav lodged an FIR being Crime Case No. 16 /2021 on 09.01.2021 at PS Para, Lucknow under Section 307 IPC against Respondent No. 2/Accused Harjeet Yadav, co-accused Sushil Kumar Yadav and two unknown persons. The allegations against the said accused persons were that on the night of 08.01.2021, at around 8.30 PM, Appellant’s father Mr. Virendera Yadav (deceased) was on way to his home from the lawn located near Jaipuria School and at the same time, the accused persons took position on Kulhad Katta Bridge and fired at him with the common intention to kill the deceased. The bullet shot hit his right cheek and made its exit through the other side leaving him severely injured. In view of his serious condition, the people present on the spot informed the local police station and admitted him at the Trauma Centre, Medical College, Lucknow. The Appellant/Informant, on receiving the information about his injured father rushed to the Trauma Centre with his mother Smt. Sunita Yadav and elder sister Ms. Jyoti Yadav. The Appellant’s mother asked her husband about the incident to which he replied that he was shot by Respondent No.2/Accused Harjeet Yadav and one, Sushil Yadav and that they were accompanied by two other persons as well. The statement given by the deceased was noted down by Sri Mahesh Kumar Chaurasia, DSP/ACP Chowk, Lucknow and Sri. Ashok Kumar Singh, SI/First Investigating Officer.”
While narrating further on the chain of events, the Bench then mentions in para 4 that, “Respondent No. 2/Accused was arrested by the police on 13.01.2021 and one country made pistol with two live cartages were recovered from him. The Appellant/Informant’s father passed away on 14.01.2021 on account of which the case was converted to one under Section 302 IPC. The co-accused, Sushil Kumar Yadav surrendered before the Judicial Magistrate, Lucknow on 16.01.2021.”
Still more, the Bench then states in para 5 that, “After completion of investigation and upon finding sufficient evidence, charge sheet was filed before the trial Court on 06.04.2021 against Respondent No.2/Accused and co-accused Sushil Kumar Yadav under Sections 302 and 34 IPC. Furthermore, investigation against two unknown accused persons is pending.”
As we see, the Bench then discloses in para 6 that, “Respondent No.2/Accused filed Bail Application No. 3340/2021 before the Sessions Judge, Lucknow and the same was rejected vide order dated 28.06.2021 on the ground that he has been named on the basis of the information provided by the deceased himself and that the same has been clarified after the perusal of the documents/forms that the bullet was shot by Respondent No. 2/Accused himself.”
As things stand, the Bench then reveals in para 7 that, “Respondent No. 2/Accused then moved the High Court for grant of regular bail vide Bail No. 11848/2021 wherein Counsel for the Respondent No.2/Accused contended that the co-accused, Sushil Kumar Yadav has been granted bail by the High Court on 18.10.2021 in Bail No. 8501 of 2021 and that the case of the Respondent No. 2 stands on identical footing making him entitled for bail on the ground of parity. The said bail application was allowed vide impugned judgment/order dated 22.10.2021. The operative portion of the judgment reads as under : –
“Keeping in view the nature of the offence, arguments advanced on behalf of the parties, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Anr (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial;
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment;
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail;
4. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant;
6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law;
7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad;
8. The concerned court/authority/official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.””
Be it noted, the Bench then enunciates in para 26 that, “The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations.”
Quite significantly, the Bench then observes in para 30 that, “This Court has reiterated in several instances that bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). A two-Judge Bench of this Court in Dolat Ram And Others Vs. State of Haryana (1995) 1 SCC 349 laid down the grounds for cancellation of bail which are :-
(i) interference or attempt to interfere with the due course of administration of Justice
(ii) evasion or attempt to evade the due course of justice
(iii) abuse of the concession granted to the accused in any manner
(iv) Possibility of accused absconding
(v) Likelihood of/actual misuse of bail
(vi) Likelihood of the accused tampering with the evidence or threatening witnesses.”
Most significantly, the Bench then minces no words to hold in para 31 that, “It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :-
a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.
b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.
c) Where the past criminal record and conduct of the accused is completely ignored while granting bail.
d) Where bail has been granted on untenable grounds.
e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.
f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.
g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.”
It cannot be glossed over that the Bench then points out in para 35 that, “Coming to the present case at hand, the Respondent No.2/Accused was arrested on 13.01.2021 subsequent to which, he had applied for regular bail before the Sessions Court which was rejected on the ground that he is named in the FIR on the basis of the information provided by the deceased himself and that the same has been clarified after perusal of the documents/forms that the bullet was shot by the Respondent No. 2/Accused himself. Being aggrieved by the same, Respondent No.2/Accused filed an application under Section 439 Cr.P.C before the High Court seeking regular bail. The High Court vide its impugned order granted bail to the Respondent No.2/Accused without considering the relevant facts and circumstances.”
Most remarkably, the Bench then lays bare in para 36 that, “A bare perusal of the impugned order reveals that the High Court has failed to take into consideration the following:-
· espondent No.2/Accused has been named in the FIR bearing Crime Case No. 16/2021 lodged under Sections 302 and 34 IPC and was the main assailant who had a weapon in his hand.
· The main role of Respondent No.2/Accused was that he opened fire at the deceased due to which the bullet hit his right cheek and made its exit through the other side.
· The deceased succumbed to his injuries on 14.01.2021.
· Respondent No.2/Accused had the intention to murder the deceased as there was previous enmity between him and the deceased with regard to some land which Respondent No.2 threatened to grab.
· On being asked about the incident by the Appellant/Informant’s mother, the deceased replied “Ratipal ka dusra number ka ladka aur ram asre ka putra Sushil Yadav ne pull par gaadi rukwakar goli maar di hai or unke sath 2 ladke aur the”. On re-clarifying, the deceased replied “Ratipal ka dusra number ka ladka matlab Harjeet Yadav”.
· Respondent No.2/accused has clearly been named by the deceased and he was actively involved in opening fire which caused the death of the deceased.
· Respondent No. 2/Accused’s statement was recorded by the then IO under Section 161 Cr.P.C in which he admitted to having committed the offence.
· Respondent No. 2 has a criminal history and several criminal matters have been lodged against him:
(1) Case Crime no. 016/2021 u/s 302/34 IPC
(2) Case Crime no. 020/2021 u/s 25 of the Arms Act
(3) Proceedings of 110G on 05.11.2021
(4) Beat Information (G.D No. 33) dated 18.12.2021
(5) Beat Information (G.D. No. 44) dated 19.12.2021.”
Most forthrightly, the Bench then mandates in para 37 that, “There is certainly no straight jacket formula which exists for courts to assess an application for grant or rejection of bail but the determination of whether a case is fit for the grant of bail involves balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. This Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with basic principles laid down in a catena of judgments by this Court.”
It must be noted that the Bench then in the same vein adds in para 38 that, “However having said that, in the case at hand, it is manifestly incorrect on the part of the High Court to have granted bail to the Respondent No.2/Accused without taking into consideration the relevant facts and circumstances and appropriate evidence which proves that the Respondent No.2/Accused has been charged with a serious offence.”
It is worth noting that the Bench then observes in para 39 that, “Grant of bail to the Respondent No.2/Accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not taken into consideration the criminal history of the Respondent No.2/Accused, nature of crime, material evidences available, involvement of Respondent No.2/Accused in the said crime and recovery of weapon from his possession.”
Furthermore, the Bench then directs in para 40 that, “Having considered the aforesaid facts of the present case in juxtaposition with the judgments referred to above, we are of the opinion that the impugned order passed by the High Court is not liable to be sustained and is hereby set aside. The bail bonds of Respondent No.2/Accused stand cancelled and he is hereby directed to surrender within one week from the date of passing of this order, failing which, the concerned police authorities shall take him into custody.”
For sake of clarity, the Bench then clarifies in para 41 stating that, “It is however clarified that observations made hereinabove are limited to our consideration of the issue of cancellation of bail, as raised by the appellant. They shall not come in the way of final adjudication before the trial Court. At the cost of repetition, it is stated that the trial Court is to consider the matter pending before it, uninfluenced by any of the observations made, strictly on the basis of evidence that shall be brought on record. This order shall also not preclude the Respondent No. 2/Accused from applying afresh for bail at a later stage, if any, new circumstances are brought to light.”
Finally, the Bench then concludes by holding in para 42 that, “As a result, appeal stands allowed.”
In conclusion, the Apex Court has made it indubitably clear that the cancellation of bail cannot be limited to the occurrence of supervening circumstances. It thus merits no reiteration that the bail thus granted by the Allahabad High Court to the murder accused was cancelled by the top court. Very rightly so!
CREATING A LEGAL FRAMEWORK FOR THE INDIAN OFFSHORE WIND SECTOR
The global boom in the offshore wind market is yet to pick up pace in India. India has plans to achieve 5GW Offshore Wind energy by 2022 and 30GW by 2030. Despite such ambitious goals, India has yet to kick-off any offshore wind farms and has been largely in the assessment phase since 2013. While it has achieved 103.05GW of renewable energy so far, it has come mainly through onshore projects, where lack of available land has now become a major constraint. Given India’s commitment at COP26 for achieving 500GW energy from non-fossil fuels by 2030, the importance of the Indian offshore wind sector (“OWS”)— considering it’s 7600 km coastline, cannot be overstated.
The slow progress in the OWS can be attributed to lack of suitable policy and legal framework. The Indian Offshore Wind Policy, issued in 2016, lays out primary steps such as facilitation by the Indian Wind Agency in obtaining permissions; and assured acquisition of power produced from such projects by the government. However, this policy does not address various supervening and foreseeable investor concerns, such as obtaining multiple permissions by the developer— culminating in longer lead times, revocation of incentives due to changing governments, lack of clarity on transferability of operating licences as well as the lack of financial subsidies. Most importantly, the policy is not backed by necessary legal provisions. For example, as per the Policy, a nodal agency would authorise development of offshore wind facilities in the Indian exclusive economic zone (“EEZ”). But, India’s EEZ Act requires that the government specifically make legal provisions for exploitation of wind energy in the EEZ. No such provision currently exists, essentially rendering void any law and nodal agency regulating offshore wind projects in the EEZ.
While introducing legal provisions to govern the OWS by amending existing law would be a quick-fix; I submit that the OWS needs a separate legal framework addressing the full length of issues in constructing, operating and decommissioning offshore projects— that facilitates investment. India’s comprehensive framework developed for oil and mineral exploration in the EEZ can be used as a model. Global forerunners such as the Netherlands, Germany, and Japan have similarly introduced precedent setting laws, catalysing the sector.
Firstly, the framework should address the concerns of investors regarding long lead times in obtaining multiple permissions. This can be solved by extending the powers of the Wind Agency from merely facilitating with other ministries to obtain permissions; to being a ‘one-stop shop’ for issuing all consent requirements, which can reduce construction time and costs of such projects.
In addition, the Wind Agency should be responsible for obtaining nominal permissions— to minimise the number of consents required by the developer. For example, the approval for connecting onshore electric substations to the offshore project, should be obtained by the Wind Agency to help developers. In order to gain such a benefit, an increased coordination between Federal and state governments would be required— as they both concurrently regulate Electricity.
Secondly, the framework should enable the transferability of operating licenses in the event of financial default. Unlike onshore wind installations, offshore installations cannot be easily moved since they are generally fixed to the seabed and taller than the Statue of Liberty! Hence, in case of default by the developer, it is easier to transfer the operating licence instead of moving such assets. This flexibility to transfer licences would reduce the reticence of lenders to finance the OWS, especially in the nascent stage. A stringent government vetting process can be established, in order to address concerns regarding the technical and financial capabilities of the successor, post such transfer.
Thirdly, the framework should ensure protection of investment by turning government incentives into codified law. For example, very recently, a binding national law had to be introduced in India after developers complained that various state governments were terminating assured renewable energy procurement agreements— causing major losses to the developers. This was despite the Federal government’s strict directives to states to adhere to their commitments and ensure uninterrupted energy procurement under power purchase agreements.
In conclusion, implementing the OWS framework will be a challenging task— especially given the current discord between major Indian political parties, which may result in the draft OWS bill not achieving the majority votes to become law; or any such law being repealed by the succeeding government. While I have highlighted the primary challenges to be addressed, several other important bottlenecks remain to be resolved. The government needs to undertake an in-depth study of the best practices in the sector to generate an erudite and well-balanced legal framework which addresses potential risks and reflects the sophistication of the international offshore wind sector, in hopes of presenting it to the Indian parliament. This will help companies such as Tata Power and RWE who are hoping to invest in India’s OWS subject to there being a proper regulatory framework.
The slow progress in the OWS can be attributed to lack of suitable policy and legal framework. The Indian Offshore Wind Policy, issued in 2016, lays out primary steps such as facilitation by the Indian Wind Agency in obtaining permissions; and assured acquisition of power produced from such projects by the government.
THE GUARDIAN OF THE CONSTITUTION
With the announcement of candidates for the office of the President of India, the battle for Raisina Hill has begun. The BJP has declared Mrs. Draupadi Murmu, a tribal leader and former Governor of Jharkhand, its presidential candidate while the opposition parties have fielded Yashwant Sinha, a former Union Minister and a retired Babu, for the highest constitutional office in the country. Sinha is a well-known critic of the Modi government who was compelled to leave the party a few years ago. It is widely believed that Mr Sinha is bound to lose given the numbers in the electoral college. So, the BJP candidate is most likely to occupy the Rashtrapati Bhavan in the last week of July this year. If elected, Mrs. Murmu will be the second woman and the first tribal President of the country. After the election, her main task will be to defend the Constitution and the laws at a time when several political parties, organizations, and individuals have complained about the misuse of central law-enforcement agencies and institutions and the President will have to face such challenges. Undoubtedly, the Constitution empowers the President to stop the violations of the Constitution.
Under the Indian constitutional scheme, practice, and several judicial pronouncements, the President of India is a constitutional head of the Union Government who is generally bound to act on the aid and advice of the Council of Ministers in the exercise of his/her constitutional powers and functions, vested in him/her by Article 53 of the Constitution, save in a few areas where he/she can act at his discretion. The Council of Ministers headed by the Prime Minister is collectively responsible to the Lok Sabha, the popular chamber of Parliament, and not to the President. The President is also an organ of Parliament. No Bill passed by Parliament can become a law unless the President gives his/her assent to that Bill. The President appoints the Prime Minister from a political party that secures the support of the majority in the Lok Sabha. In the case of a hung Lok Sabha, the President has some discretion in the government’s formation. On the advice of the Prime Minister, the President appoints other ministers and allocates them portfolios on the recommendation of the Prime Minister. If someone is ineligible to become a minister, the President can point that out to the Prime Minister who can drop such a name from the list of ministers. The ministers hold their office during the pleasure of the Prime Minister who can eject any minister at any time and the President is bound to go with the Prime Minister’s choice. The Prime Minister is the head of the Council of Ministers which can remain in office until it ceases to secure the support of the majority in the Lok Sabha. The moment the Lok Sabha expresses its lack of trust in the Council of Ministers, the President can ask the Prime Minister to resign and may invite another political party to form the government. Thus, the Lok Sabha is the lifeline of the elected government. The Council of Ministers is the supreme policy-making body in the Union. It makes all decisions and takes initiatives to bring legislative proposals. There is no need to get the prior approval of the President before making decisions. However, the Prime Minister informs the President as a courtesy to fulfil the mandate of Article 78 of the Constitution. Under this provision, the President can also seek any information about the affairs of the Union from the Prime Minister who is duty-bound to furnish him with such information. The President can also ask the Prime Minister to present the decision of any minister before the Cabinet for its approval. This provision is helpful to ensure the smooth compliance of the doctrine of collective responsibility of the government in a parliamentary democracy.
I am unable to accept the view of some constitutional pundits who opine that the President of India is a rubber stamp or merely a figurehead who acts like a robot. The President of India is not a rubber stamp at all. The Constitution allows him/her to play a significant role and he/she can certainly contribute a lot to the constitutional governance in the country. Under Article 74 of the Constitution, the President can ask the Council of Ministers to reconsider its advice once but thereafter, if the Council of Ministers reiterates its advice, the President is bound to accept the same and act accordingly. The constitutional and political pundits call it President’s Referral power. This power is exercised by the President at his discretion. This option was given to the President by the 44th Constitutional Amendment, 1978. During his tenure, then-President K. R. Narayanan exercised this option two times and saved two State Governments from Article 356 of the Constitution. Also, the President can persuade the Prime Minister to run the administration according to the constitutional provisions as the President is duty-bound to preserve, protect, and defend the Constitution and the laws as per the mandate of his/her oath of office under Article 60 of the Constitution. Article 61 of the Constitution provides a sanction for the fulfillment of the oath because, under Article 61, the President can be impeached “for violation of the Constitution”. Thus, the President cannot accept the illegal and unconstitutional advice of the Council of Ministers blindly. The President needs to apply his/her mind before approving the Cabinet’s decisions or proposals even if Article 361 of the Constitution provides immunity to the President against judicial proceedings. Article 361 cannot stop Parliament from impeaching the President.
Admittedly, the President of India needs to exercise his/her constitutional powers and functions on the advice of the Council of Ministers which remains in existence even after the dissolution of the Lok Sabha. But the President has some personal responsibility also. He/she cannot shift all responsibilities to the Council of Ministers. Renowned constitutional jurist H M Seervai rightly states that the Council of Ministers cannot compel the President to act against the provisions of the Constitution. In his famous book on the Constitution of India, Mr. Seervai gives some examples to prove this thesis. As Article 85 of the Constitution provides that: “The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session”. If the Prime Minister advises the President to call the next session after a year, by which time the government hoped to overcome its political crisis, it is the duty of the President to disregard such advice and to call for a session of the two Houses of Parliament as required by Article 85(1) of the Constitution. For he if acted otherwise, he would be violating a mandatory provision of the Constitution, for which he is liable to be impeached by Parliament. In another example, Mr. Seervai states that the President cannot ignore the opinion of the Election Commission while deciding any matter relating to the disqualification of a Member of Parliament under Article 103 of the Constitution and cannot go with the Cabinet’s advice in such matters. Thus, the President cannot violate the mandatory provisions of the Constitution while exercising his/her powers on the advice of the elected government headed by the Prime Minister.
After the three Judges’ appointment cases, the President is bound to appoint the judges of the Supreme Court and High Courts on the recommendation of the Supreme Court Collegium headed by the Chief Justice of India. If the Prime Minister advises him/her to override the collegium’s recommendation, the President can disregard the Prime Minister’s advice and has to act according to the collegium’s recommendation. This arrangement has been made by the judiciary to protect its independence from the executive. However, in many cases, the judiciary has also misused this freedom and appointed people who should never have been appointed judges. Several constitutional pundits have said on different occasions that the collegium system has promoted nepotism, elitism, and casteism in the judiciary. Unfortunately, a few privileged families of judges and lawyers, some castes, and communities have dominated the higher judiciary badly. This is not good for the health of the legal profession. The time has come when the government should take steps to examine the functioning of the collegium system and enact a law to scrap this judge-made body which has no constitutional foundation.
Given the above discussion, it is submitted that the President of India has a specific role in our constitutional system and he/she must play that role to protect the Constitution and the laws effectively remaining within the constitutional boundaries. The President is not a master of the elected government but he/she is certainly a guardian of the Constitution, a friend of the Prime Minister, and above all, a vigilant citizen who is duty-bound to protect the collective interests of the nation. He/she can guide the government and can persuade the government to act according to the provisions of the Constitution. The President may use his/her activism as and when needed to save democracy, rule of law, human rights, and dignity. The people have lots of expectations from the new tenant of the Rashtrapati Bhavan which is a very powerful building in the land of Professor Upendra Baxi, a great constitutional jurist and defender of human rights and dignity.(For more information about the constitutional powers, functions, and position of the President of India, please read Lokendra Malik, The Power of Raisina Hill, LexisNexis 2015) Let me conclude with these insightful words of Justice Krishna Iyer observed in the Samsher Singh’s case: “The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, the right to be consulted, to warn and encouraged. Indeed, Article 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors i.e., the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role”.
Counsel entitled to physically accompany party to remote point while giving evidence via video conferencing: Karnataka HC
In a very significant development, we saw how just recently on 24 June 2022, the Karnataka High Court has in an extremely learned, laudable, landmark and latest judgment titled K Lakshmaiah Reddy vs V Anil Reddy & Others in Writ Petition No. 10926 of 2022 and cited in 2022 LiveLaw (Kar) 237 held in no uncertain terms that a counsel/advocate appearing for the parties are entitled to be physically present at the remote point from where the evidence of such party is being recorded through video conferencing. It must be mentioned here that a Single Judge Bench of Justice Sachin Shankar Magadum allowed the petition filed by one K Lakshmaiah Reddy who had challenged the order of the Trial Court which had declined permission that was sought by his counsel to be present at the remote point while recording of the evidence. Very rightly so!
To start with, this brief, brilliant and balanced judgment authored by a single Judge Bench of the Karnataka High Court comprising of Justice Sachin Shankar Magadum sets the ball rolling by first and foremost putting forth in para 1 that, “The captioned writ petition is filed by the defendant No.2 questioning the order dated 30.05.2022 passed on memo filed by the petitioner/defendant No.2. Under the impugned order, the learned Judge has declined permission sought by the counsel appearing for the present petitioner/defendant No.2 to be present at the remote point while recording evidence of defendant No.2.”
To put things in perspective, the Bench then envisages in para 2 that, “The present petitioner is a resident of Michigan, USA and is aged about 87 years and is suffering from various health issues. Therefore, the petitioner filed applications in I.A.Nos.27 and 28 under Rule 6 of the Video Conferencing Rules and also application in I.A.No.36 under Order 18 Rule 16 of CPC to examine the petitioner immediately. The said applications were allowed by the Trial Court thereby permitting the present petitioner/defendant No.2 and defendant No.5 to record their evidence through Video Conference. The Trial Court accordingly with the consent of parties to the suit, fixed the date of recording evidence through video conferencing on 06.06.2022. The petitioner filed memo on 25.05.2022 requesting the Court to make further e-mail correspondence towards logistic support and to inform the remote point coordinator to issue 5 entry passes to enable the petitioner to have assistance of his Advocate and also attendants.”
While stating the precise reason behind filing of petition, the Bench then specifies in para 3 that, “The contesting defendants filed statement of objections to the said memo. The learned Judge vide impugned order at Annexure-A has refused to permit the petitioner’s Advocate to be present at the remote point while recording evidence of defendant No.2. It is this order which is under challenge.”
To be sure, the Bench then states in para 14 that, “Before I advert to the controversy involved between the parties, it would be useful for this Court to refer to the relevant Rules framed by this Court which is titled as “Rules for Video Conferencing for Courts”. The relevant definitions are culled out as under:
“2(v) ‘Court Point’ means the Courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.
2(x) ‘Remote Point’ is a place where any person or persons are required to be present or appear through a video link. 2(xii) ‘Required Person’ includes:
a. the person who is to be examined; or
b. the person in whose presence certain proceedings are to be recorded or conducted; or
c. an advocate or a party in person who intends to examine a witness; or
d. any person who is required to make submission before the Court; or
e. any other person who is permitted by the Court to appear through video conferencing.””
Needless o say, the Bench then mentions in para 21 that, “The respondents are objecting the presence of counsel at the remote point. The moot question that has to be examined before this Court is, as to whether the Court is vested with discretion to permit the counsel on record to be present at the remote point along with his client?”
It would be instructive to note that the Bench then enunciates in para 22 that, “Rule 14 refers to ‘Conduct of proceedings’. It would be useful for this Court to refer to Rules 14.1 and 14.7 which reads as under:
“14.1 All Advocates, Required Persons, the party in person and/or any other person permitted by the Court to remain physically or virtually present (hereinafter collectively referred to as participants) shall abide by the requirements set out in Schedule I.
14.7 The Court shall satisfy itself that the Advocate, Required Person or any other participant that the Court deems necessary at the Remote Point or the Court Point can be seen and heard clearly and can clearly see and hear the Court.””
For sake of clarity, the Bench then clarifies in para 23 that, “On perusal of Rule 14.1, it is clearly evident that the said Rule clearly contemplates and enables all Advocates, required persons, party-in-person either to remain physically or virtually present who are collectively referred to as participants. The only rider to the said sub-rule is that the participants are required to abide by the requirement set out in Schedule-I to the Rules. Therefore, the “Required Person” as defined under Rule 2(xii) would not necessarily mean that it is only the witness, who has to be examined, has to be physically present at the remote point. This Court is unable to understand as to how the counsel on record can be denied a right of audience at the remote point. Rule 14 clearly contemplates and permits all Advocates including required persons or party-in-person to be physically present at the remote point. Further, Rule 14.7 also gives discretion to the Court in a given case to permit the Advocate or any other participants that Court deems necessary at the remote point or Court point.”
Frankly speaking, the Bench then observes in para 24 that, “The definition “Required Person” and further persons who can be permitted to be present at the remote point as contemplated under Rule 8.11 cannot be so narrowly construed and interpreted so as to exclude a counsel. If such a proposition is accepted, that would take away the valuable rights of a client who is entitled for apt assistance by his counsel on record. It is an established tradition that a trusting relationship between a client and Advocate is necessary for effective representation. Therefore, legal assistance before a witness is examined or cross-examined plays a vital role. The counsel appearing for either of the parties are the most important actors of most court room interactions. The Advocates on record are the central influence in the court room. Therefore, personal contact between a counsel and his client stand together in Court and therefore, is deemed very important in establishing trust which would ultimately result in establishing a litigants’ faith in the legal system overall and this trust is often built by the Advocates on record who are also officers of the Court. Mere presence of Counsel of a deponent under cross-examination at remote point would result in either prompting or tutoring the witness.”
Most forthrightly, the Bench then states in para 25 that, “The definition “Required Person” under Rule 2(xii) coupled with Rule 8.11 authorizing a coordinator at the remote point to ensure that no person is present at the remote point cannot be read in isolation. The above said relevant rules have to be conjointly read along with Rules 14.1 and 14.7. A witness is entitled for legal assistance even when he is cross-examined. However, at the time of cross-examination, his counsel cannot prompt or tutor him. Based on mere apprehension, the above said rules cannot be narrowly interpreted so as to exclude the counsel on record who is an integral part of legal system and plays a vital role in dispensation of justice. The Advocates admittedly play a role as an Officer of the Court. His presence at the time of cross- examination of his witness is further more essential. It is a common fact that cross-examination often involves a battle of wits between cross-examiner and witness. At times, Advocates cross-examining the witness may have to use guile to expose the unreliability of the witness, as when the latter is lulled into a false sense of security and does not realise that he is being trapped or set up for questions which will effectively challenge him. Advocates often adopt such an approach which are essential to break the effect created by the witness in examination-in-chief or in his affidavit of the evidence in chief. Therefore, it is the counsel appearing for the witness who is subjected to cross-examination can object to the questions posed to the witness which are found to be contrary to ethical rules. In such circumstances, it is the Advocate who has to meticulously watch the proceedings of cross-examination and has to be vigilant to see that Advocate who is cross-examining does not lie or put untruths to the witness. The essence of the principle here is that the cross- examiner must not act dishonestly. He must not mislead the Court as well as the witness who is being cross-examined. Therefore, the presence of Advocate also plays a vital role when his witness is being cross-examined at the remote point. The presence of Advocate at the remote point would create a sense of security and would help him to face test of cross-examination. That cannot be misconstrued to such an extent that it would amount to prompting or tutoring. His mere presence at the remote point will not violate the Rules.”
Quite commendably, the Bench then holds in para 26 that, “Therefore, in the present case on hand, defendant No.2 is entitled to seek legal assistance even when he is being cross-examined by way of video conferencing. Using video conferencing, the defendant’s rights cannot be sacrificed in the name of procedural efficiency. The adversarial model which is adopted for several decades cannot be abandoned under the garb that the Rules relating to video conferencing does not permit. Adversarialism is a cornerstone of the legal process; the system is predicated on this tenet. Denial of legal assistance while recording ocular evidence of a witness through video conferencing violates fundamental fairness.”
In the present context, the Bench then also makes it clear in para 27 that, “Looking to the recent trend, video conferencing does have a place in the legal system. The challenge is not to exclude it but to use it responsibly. The video conferencing can produce better results, but at the same time, certain highlighted issues which may prop up down the line have to be addressed effectively. The client is entitled to seek assistance and therefore, the clients interaction with his counsel on record is quite essential to a fair trial and a person who is supposed to be cross-examined is entitled to meet his counsel ahead of time to discuss every anticipated questions, concept or a piece of evidence. The Rules that are framed by this Court governing recording of evidence through video conferencing require all participants to follow the Rules in terms of Schedule-I which is annexed to the Rules.”
As a corollary, the Bench then observes in para 28 that, “It is in this background, the proposition floated by the counsel appearing for the contesting respondents cannot be acceded to. An Advocate should always be with his client. The Rules framed by this Court do not intend to support plaintiffs team or a defence team. The counsel appearing for respective clients are entitled to stand together and the same is necessary for an attorney-client relationship to function properly. A medium that interferes with the court’s main mission should be eliminated.”
Quite forthrightly, the Bench then also clearly states in para 29 that, “The contesting parties are entitled to have a discussion with their Advocates on record as they need to discuss important decisions concerning vital documents, basic legal strategy prior to appearing in Court. Personal meetings are better for hastening out case strategies, fact gatherings and basic legal tactics. Therefore, it is in this context, if the proposition of respondents is accepted and if counsel appearing for a witness who is supposed to be cross-examined is denied a right of audience at a remote point, the apprehension that the ocular evidence recorded through video conferencing will not satisfy the prescribed requirements of a fair trial and the same would create a doubt in regard to legitimacy of a legal process may turn out to be a hard reality. Therefore, denial of right of audience to a counsel on record has its own ramifications and may result in violation of fundamental fairness and may also have impact on due process of law.”
Furthermore, the Bench then states in para 30 that, “By introducing technology and by bringing in recording of ocular evidence through video conferencing, an attempt is made in all good faith to meet the standards of face-to-face trial. By bringing in new Rules, the Courts have to meet the established standards and traditions in recording evidence physically in the open Court. The dignity and ritual of physical presence in the Court was found to be absolutely necessary for public perception of justice. A very ceremony of trial and presence of fact finder may exert a powerful force for truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Now in a given case, where parties consent to record ocular evidence through video conferencing has to meet the above said standards. There is an apprehension that non-verbal cues are unavailable or harder to read when associated with video conferencing. Therefore, the presence of counsel of a witness to be cross-examined at a remote point becomes further more essential.”
What’s more, the Bench then stipulates in para 31 that, “In the light of the discussions made supra, now let me see whether the Court is vested with discretion to permit the counsel appearing for a witness who is supposed to be cross-examined to be present at the remote point. The remote point has to be considered as an extended court room. A Court includes a physical court and a virtual court and if a Court can have court point at one or more place, then the Rules clearly prescribe that the counsel on record can be present at all point either in the Court physically or through a video link or at a remote point physically. Rule 14.1 clearly contemplates persons who are entitled to participate in court proceedings. Rule 14.1 clearly indicates that all Advocates and required persons are entitled to remain physically or virtually present. A discretion is also vested with the Court under Rule 14.7 and it is well within the discretion of the Court in a given set of facts to permit Advocate, required person or any other participants that court deems necessary at the remote point or at the court point. If at all any mischief is played during the course of recording evidence, the Court is better placed to hold an enquiry in regard to any mischief that would be complained.”
Of course, the Bench then rightly points out in para 32 that, “Unlike face-to-face hearing, a Judge has a privilege of replaying the recording and find out as to whether the witness is hoaxed or tutored. The court can also examine whether counsel on record has interfered and assisted the witness under cross-examination. The guidelines set out in Schedule-I coupled with Rule 5.6.4 clearly provides adequate protection. It is in this background, this Court would find that the apprehension of the respondents and objections raised in regard to entitlement of counsel on record to be physically present at remote point appears to be misconceived.”
Most significantly, the Bench then lays down in para 33 that, “If the order under challenge is tested in the light of the above said discussions made supra, this Court is of the view that the order under challenge is not at all sustainable. Mere bald allegations that if the counsel is permitted to be physically present at remote point, then every possibility of petitioner getting prompted, tutored or coaxed cannot be acceded to and such an objection is not at all sustainable. In fact, Rule 14 which lays down guidelines for conducting proceedings through video conferencing clearly contemplates and authorizes all Advocates to be present physically at remote point. A discretion is also vested with the Court in a given set of facts to permit the counsel or any other unconnected participants to be physically present at the remote point. It is in this background, this Court would find that the learned Judge erred in not exercising discretion judiciously. Therefore, the finding of the learned Judge that counsel appearing for the present petitioner/defendant No.2 is already present at the remote point and he can join recording of evidence by joining the link does not satisfy the requirements of a fair trial. The learned Judge erred in not exercising judicial discretion by permitting the counsel appearing for defendant No.2 to be physically present at the remote point.”
In addition, the Bench then also most commendably notes in para 34 that, “If a coordinator at the remote point is already available and if the entire ocular evidence is video recorded, any slight mischief can be easily taken notice of and the consequences would follow if the counsel contravenes any of the courtesies and protocols applicable to a physical Court. Therefore, I am of the view that the counsel appearing for the defendant No.2 is entitled to be physically present at the remote point.”
Finally, the Bench then concludes by holding in para 35 that, “For the reasons stated, supra, I pass the following:
(i) The writ petition is allowed;
(ii) The impugned order dated 30.05.2022 passed in O.S.No.66/2016 on the file of the III Additional City Civil & Sessions Judge, Bengaluru is set aside. Consequently, the memo dated 25.05.2022 filed by the petitioner/defendant No.2 is allowed;
(iii) The coordinator at the remote point shall ensure that while recording evidence of the petitioner/defendant No.2, the persons who are permitted to be present at the remote point will not indulge in interfering with his cross-examination;
(iv) Before commencing with the recording of evidence of petitioner/defendant No.2, the Court shall satisfy itself that the counsel appearing on behalf of petitioner/defendant No.2 can be seen and heard clearly at the remote point;
(v) The Court shall also monitor and take all necessary precautions that recording of ocular evidence of petitioner/defendant No.2 is conducted by strictly following the Rules.”
In essence, the Karnataka High Court has thus made the entire picture pretty clear in this notable judgment about counsel being entitled to physically accompany a party to remote point while giving evidence via video conferencing. We have already discussed it in detail. It merits no reiteration that all the courts must definitely pay heed to what the Karnataka High Court has held so very explicitly in this leading case!
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