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IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 6th July, 2011 Judgment Pronounced on: 9thAugust, 2011 WP(C) No. 12787/2009 Deepak Khosla Through: Versus Union of India & Ors. Through: ..... Respondents Mr. Jitendra Kumar, Adv. for UOI Mr.Rajiv Bansal, Adv. for R-2. ..... Petitioner Petitioner in person.

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1 2 3 Whether reporters of the local papers be allowed to see the Yes judgment? To be referred to the Reporter or not? Yes Whether the judgment should be reported in the Digest? Yes

DIPAK MISRA, CJ The petitioner has preferred this writ petition under Article 226 of the Constitution of India to declare that the petitioner is entitled to nonintrusively audio-record judicial proceedings that involve his

participation before this Court and to so record either by himself or

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through his advocate on record; to issue a writ of prohibition or a writ of any other nature or description to command the respondent Nos.3 and 4, the Registrar General and the Registrar of this Court, not to 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 issue any further order / direction in the interest of justice, equity and in furtherance of or to secure any other objective or purpose as this Court may deem fit and proper in the circumstances of the case. 2. When the matter was listed before the learned Single Judge on

25.2.2011, he had passed the following order: This petition has been filed by the petitioner seeking a declaration that the petitioner was entitled to nonintrusively audio recording of judicial proceedings in those cases wherein the petitioner himself was a party, he should be allowed to do so either by himself or through an Advocate-on-record. The other prayer is that a Writ of Prohibition should be issued against respondents no. 3 and 4 i.e. the Registrar General and Registrar of this Court not to interfere with the right of the petitioner to do non-intrusively audio recording. Audio/Video recording of the court proceedings in fact amounts to maintaining a record of the court
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proceedings. The record of the court proceedings is presently kept in print form by typing the orders or in the form of soft copy (plus hard copy). Typing was earlier done on manual typewriters, now-a-days it is done on computers. Filing itself is also done in the Court by way of soft copy or hard copy; soft copy in e-courts and hard copy in non e-courts. The petitioner is seeking permission to record the proceedings during hearings of the Court in his own cases and one of the grounds of petitioner seeking this recording is, so that the petitioner is able to revive his memory as to what transpired in the Court and to keep a track of what was argued in the Court. He submits that he can use these recordings later on to show that a point was not argued or a point was argued but was not dealt with. Any kind of recording which is done in the court of record of the court proceedings, if is used before higher forum in any judicial review must be authenticated recording duly authenticated by the Court. Presently there is no procedure available in the Court of authenticating the audio or video recording of the court proceedings. Permitting petitioner for recording of proceedings for his private use has its own dangers. We know that the technology of audio/video recording is advanced these days but the technology of fabricating such recordings is equally advanced. Anybody can either delete the relevant portion from the recording or by creating similar frequency/pitch of voice in computer audio and video clips can be added in the recording. Therefore any recording sought to be used for judicial review before any forum etc. cannot be permitted by the Court unless there is a set procedure for authentication of the recording and a copy of the recording is preserved in the Court for
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comparison. However, recording for the purpose of personal use of the petitioner does involve similar danger because the petitioner may use the recording for publication or for showing it to the media and claim that it was his right to tell the truth despite the recording being unauthenticated. I, therefore consider that the recording if allowed by the Court must be an authenticated recording as per procedure laid down by the Court. Since issue involved is not of recording in one particular Court but the issue involved is of recording of proceedings of all those cases where petitioner is a party and these cases may be before any Court, the issue will have to be decided by a larger bench of the Court on both legal as well as administrative side. Necessary direction can be issued only by the larger bench after considering issue as to what paraphernalia would be needed and how the recording is to be authenticated, if it is to be allowed. I consider that it is high time that the Court and State should consider introduction of authenticated audio/ video recording of the proceedings in all Courts more specifically in District Courts. In my view audio and video recording shall help smooth functioning of the District Courts where the District Judges and Civil Judges work in adverse circumstances and do not have power of contempt. When they refer matters of contempt to the High Court pleas are taken that incident had not happened or a manipulated version was put forward. This will also discipline not only the Judges who do not come to the Courts in time but will also discipline the advocates and litigants who many a times try to obtain order from the Court either by show of force or abusing more specifically
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when an advocate is an accused before the Court and entire Bar surrounds the Judge. I, therefore consider that it is high time that High Court should consider the introduction of such measures of audio/video recording in trial Courts as well in this Court.

3.

On the basis of the aforesaid order, a larger Bench has been

constituted and the matter has been placed before us. 4. Mr. Deepak Khosla, the petitioner appearing in person, submitted

that the audio and video recording would not involve substantial cost and there is no involvement of any kind of infrastructural improvement and it should be done for the sake of transparency. It is his further submission that the said audio and video recording would show an undeniable and objective record of what transpired in Court. It is propounded by him that it would hasten the dispensation of justice and fructify the hopes of the litigants. He has brought on record certain calculations to demonstrate how it will be cost effective. It is

highlighted by him that in a progressive and civilized society, audio and video recording would add more transparency to the justice dispensation system. He has referred to certain paper cuttings to show that in United Kingdom, the Supreme Court proceedings are being
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televised where Justices are seated at eye level with the lawyers and the visiting public in the court rooms. He has commended us to the

decision in State of Punjab vs. Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608. Mr. Khosla has also referred to various speeches of

eminent jurists which pertained to the Court proceedings and the conception of transparency. 5. Mr. Bansal, learned counsel for the Respondent No.2, submitted

that there is no legislation in the field to introduce video and audio recording process in the Courts. It is also urged by him that

introduction of the same in the Court rooms is a policy decision of the High Court for which a writ of mandamus cannot be issued. The

learned counsel would further submit that the learned Single Judge, in his referral order, had stated that the Court and the State should consider introduction of authenticated audio/video recording of the proceedings in all Courts, more specifically in the district courts as the same would help in the smooth functioning of the Courts in adverse circumstances. He has also stated that the learned Single Judge has observed that it is time that the High Court should consider the

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introduction of such measure of audio/video recording in trial courts as well as in this Court. Emphasising on the same, it is proponed by him that the consideration of the same by the State Legislature is not a matter of judicial review and similarly, issuance of a writ of mandamus to the respondents to introduce or to consider the same is not permissible. 6. There is no cavil over the issue that there is no specific legislation,

provision or any law regulating the field referring to which it can be said that there is a mandate of law that the audio/video recording is to be done in respect of Court proceedings. There is no statutory authority which has been given the said responsible function. A writ of

mandamus means a command which is issued in favour of a person who establishes an inherent legal right in his case. Such a writ is issued against a person who has a legal duty or obligation to perform but has failed or neglected to do so. It needs no special emphasis to state that such a legal duty emanates either from discharge of a public duty or operation of law. In this context, we may refer with profit to the

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decision in Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr., (2002) 4 SCC 638 wherein it has been stated thus: The expression for any other purpose in Article 226 makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. Mandamus means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date
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of the petition (Kalyan Singh v. State of U.P., AIR 1962 SC 1183). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law.

7.

In the case at hand, the petitioner does not have a legal right

which is provided for under any enactment, common law or by rules or orders which have the force of law. He has advanced his arguments on the basis of transparency. Needless to emphasise, the material brought on record pertains to the practice followed in other countries and the petitioners personal belief as he has been litigating many cases before this Court. In a way, he has made an adroit effort to give sermons in the name of transparency. An individual sermon cannot earn the status of any law. What is canvassed by him is that the audio/video recording process will curtail the Courts time and the submissions would be luculent and there would be saving of the proceedings for future. The feelings of the petitioner have not yet been codified into a law by the Legislature. Hearings in Court take place in open court except where it is stipulated by the statute that proceedings shall be taken in camera or in certain cases of habeas corpus or matters relating to chamber
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proceedings. They are different from recording of proceedings in open court by way of audio/video recording. There is no rule in that regard. Framing of a rule is a matter of policy. Someone can have a grievance when there is a rule which is not followed and the litigants legal right is affected. Therefore, no mandamus can be issued to the respondents for audio and video recording of the Court proceedings. 8. In this context, we may refer with profit to certain authorities in In Narinder Chand Hem Raj and Ors. v. Lt. Governor,

the field.

Administrator, Union Territory, Himachal Pradesh and Ors., AIR 1971 SC 2399, their Lordships have opined that no court can issue a mandate to a legislature to enact a particular law and similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. 9. In State of Himachal Pradesh v. A Parent of a Student of Medical

College, Simla and ors., AIR 1985 SC 910 it has been ruled that the court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it
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or assume to itself a supervisory role over the law making activities of the executive and the legislature. 10. In Supreme Court Employees Welfare Association and Ors. v.

Union of India and Anr., AIR 1990 SC 334, it has been held that no court can direct an executive authority. 11. In Chandigarh Administration and Anr. v. Manpreet Singh and

Ors., AIR 1992 SC 435, their Lordships of the Apex Court has clearly stated that the High Court cannot assume the role of a rule making authority in exercise of the power under Article 226 of the Constitution of India. 12. In State of Jammu & Kashmir v. A.R. Zakki and Ors., AIR 1992

SC 1546, the principle was reiterated that a writ of mandamus cannot be issued to the legislature to enact a particular legislation and the same is true as regards the executive when it exercises the power to make rules which are in the nature of subordinate legislation. 13. In Municipal Committee, Patiala v. Model Town Residents

Association and Ors., AIR 2007 SC 2844, though in a different factual

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matrix, the Apex Court has opined that the High Court has no power to structure or restructure the legislative enactments. It has been

reiterated that High Court must ensure that while exercising its jurisdiction which is supervisory in nature, it should not over step the well recognized bounds of its own jurisdiction. 14. In view of our premised reason, we answer the reference stating

that a writ in the nature of mandamus cannot be issued for taking measures of audio/video recording in trial courts as well as in this Court. We may hasten to add that as the sole prayer in the writ petition pertains to the said relief, nothing subsists to be adjudicated in the writ petition. Accordingly, the writ petition stands dismissed without any order as to costs.

CHIEF JUSTICE

AUGUST 9, 2011 dk/pk

SANJIV KHANNA, J.

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IN THE HIGH COURT OF DELHI AT NEW DELHI WP(C) No. 12787/2009 Deepak Khosla Through: Versus Union of India & Ors. Through: ..... Respondents Mr. Jitendra Kumar, Adv. for UOI Mr.Rajiv Bansal, Adv. for R-2. ..... Petitioner Petitioner in person.

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA ORDER 09.08.2011 After the judgment was pronounced, Mr. Deepak Khosla, appearing in person made an oral prayer for grant of certificate for appeal to the Supreme Court under Article 134A of the Constitution of India. Having heard the petitioner in person, we are of the considered view that the case does not involve a substantial question of law of general importance. Hence, the oral prayer for grant of certificate stands rejected.

CHIEF JUSTICE

AUGUST 09, 2011 pk

WP(C) No.12787/2009

SANJIV KHANNA, J

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