Court procedures: India

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This is a collection of articles archived for the excellence of their content.


Audio/ video deposition by experts

2019/ HC connects with forensics via video

Abhinav Garg, HC connects with forensics via video to discuss proof, April 11, 2019: The Times of India

For the very first time, Delhi high court experimented with live video conferencing in a courtroom during regular proceedings and discussed evidence related to a cybercrime case. Until now, courts mostly resorted to video conferencing in cases of rape or sexual abuse against children, where a make-shift arrangement was made for the judge to sit in a separate room, suspending court work. The judge then heard the survivor’s testimony while the accused was produced from judicial custody via a screen and camera in jail.

Taking the next step in use of technology in courts, Justice Sanjeev Sachdeva on Wednesday conducted video conferencing with the chief of Forensic Science Laboratory, Rohini, from the court room itself when the case came up for hearing as per the roster.

The striking aspect was that, instead of the FSL director being present in person, she answered queries of the court from a TV screen, even as the judge conducted the hearing when he sought to know facets of a cybercrime case where FSL has been found wanting in technical expertise to retrieve data and evidence from mobile phones and computers.

With cameras fixed inside the courtroom at different angles and a huge screen mirroring it back to FSL Rohini, the director responded to the court questions on software and hardware upgrade needed to crack cases.

TOI has learnt that technical teams of the high court and FSL were both pressed into service to ensure the live video exchange went along without any glitches. Sauces said MTNL was pressed upon to provide continuous increased bandwidth for a sustained period of time to enable the video conferencing.

The exercise took place after HC found that FSL lacked forensic tools to retrieve crucial evidence from CCTV camera hard disks, smart phones and new age computer drives. It asked the director of FSL to apprise the court on what is required “in terms of hardware and software in achieving international-standard analysis laboratory.”

Audio-video recordings, live- streaming

2016: govt reminds CJI

The Times of India, Jan 30 2016

Pradeep Thakur

Start audio-video recordings, govt reminds CJI

For the second time in less than a year, the government has reminded the Chief Justice of India about starting audio-video recording of court proceedings which is meant to bring transparency in the justice delivery system and accountability in conduct of judges who allow too many adjournments. In his letter to CJI T S Thakur, law minister Sadananda Gowda requested him to allow the government to begin audio-video recording on a pilot basis in a few district courts -indicating that the Supreme Court and high courts could remain out of the ambit of such transpa rency measures for now.

In July 2015, the law mini ster too had made the demand for audio-video recordings to the then CJI on the basis of a strong recommen dation by the then law commission chairman Justice A P Shah who did not see any reason in opposing such a proposal as it would only help in “bringing more accountability to the judiciary“.

The apex court since 2014 has always opposed the need to introduce audio-video recordings, with a judgment in January 2015 rejecting the idea. In view of SC's reluctance, the government even considered bringing in amendments to introduce audio-video recordings.

The SC secretary general, in the advisory council meeting, had mentioned the SC's dismissal of petitions seeking approval for audiovideo recording of judicial proceedings. “The view was that our court system has not reached the level where video recording of court proceedings can be permitted,“ he had said.

The minister's letter to the CJI comes ahead of the next advisory council meeting on February 16. The plan for audio-video recording was included in PhaseII of the e-court project where the government has allocated Rs 1,670 crore for its implementation.

2018: Streaming of proceedings gets SC nod

AmitAnand Choudhary, Courts to go live: Streaming of proceedings gets SC nod, September 27, 2018: The Times of India

Pilot Project To Start From Apex Court, HCs To Follow Suit

You can now watch court-room proceedings live after the Supreme Court on Wednesday agreed to allow live-streaming of courtroom proceedings to put them under public glare and bring in transparency and accountability in judicial functioning.

A bench of Chief Justice Dipak Mishra and Justices A M Khanwilkar and D Y Chandrachud said that livestreaming of court proceedings is manifestly in public interest and it will help bring the work of the judiciary to the lives of citizens.

“... sunlight is the best disinfectant. Live-streaming, as an extension of the principle of open courts, will ensure that the interface between a court hearing with virtual reality will result in the dissemination of information in the widest possible sense, imparting transparency and accountability to the judicial process,” said Justice Chandrachud in a separate concurring verdict.

The pilot project for livestreaming would be initiated from the apex court and later extended to high courts and lower courts. To begin with, only a specified category of cases (those of national importance being argued before the Constitution Bench) would be be live-streamed as a pilot project but the mechanism would be set up in all courtrooms for live-streaming of proceedings.

The bench asked the Supreme Court to frame rules for permitting live broadcast of proceedings and put in place equipment, including cameras, in courtrooms. The court framed guidelines on live-streaming and said cases pertaining to sexual offences and matrimonial disputes be excluded. In a separate but concurring verdict, Justices Khanwilkar and Chandrachud said many developed countries have allowed livestreaming of court proceedings and judiciary in India should adopt it to enable people to have first-hand experience of proceedings.

“Live-streaming of courtroom proceedings will reduce the public’s reliance on second-hand narratives to obtain information about important judgements and the course of judicial hearings. Society will be able to view court proceedings first-hand and form reasoned and educated opinion about the functioning of courts. This will help reduce misinformation and misunderstanding about the judicial process. It will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy,” the bench said.

Coverage of court proceedings

SC, 2021: Media has right to report exchanges during hearings

Dhananjay Mahapatra, May 7, 2021: The Times of India

Moving away from a nine-yearold judgment putting curbs on coverage of court proceedings to protect the rights of the accused, the Supreme Court said the media had an unfettered right to report exchanges during hearings as it rejected the Election Commission’s plea that the media be restricted to publishing only court orders and judgments.

A bench of Justices D Y Chandrachud and M R Shah said, “This court stands as a staunch proponent of the freedom of the media to report court proceedings. This, we believe, is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.”

The bench cited the fillip the freedom struggle got from the reportage of Lokmanya Bal Gangadhar Tilak’s sedition trial.

‘Social media extension of open court’

The heart of the matter, which is the first prayer that the EC has raised — is that of seeking a restraint on the media on reporting court proceedings.

“The basis of its application was that nothing apart from what forms a part of the official judicial record should be reported. This prayer of the Election Commission strikes at two fundamental principles guaranteed under the Constitution — open court proceedings, and the fundamental right to freedom of speech and expression,” the bench said.

Importantly, the court brought up the issue of livestreaming of court proceedings, as is the practice in the supreme courts of the US and the UK.

Justice Chandrachud said that though the apex court three years ago in the Swapnil Tripathi case had in principle approved the live telecast of SC hearings and suggested the modalities, it is yet to implement the same in letter and spirit.

“Unless livestreaming and archival of court proceedings sees the light of day (three years have elapsed since the decision in Swapnil Tripathi), the absence of records of oral proceedings will continue to bedevil the system,” Justice Chandrachud said while ruing the absence of material to confirm Madras HC’s purported hurtful remarks against the poll panel, which was widely reported in the media, causing consternations to the constitutional body mandated to conduct free and fair elections.

“With the advent of technology, we are seeing reporting proliferate through social media forums which provide real-time updates to a much wider audience. This is an extension of the freedom of speech and expression that the media possesses. This constitutes a virtual extension of the open court. This phenomenon is not a cause of apprehension, but a celebration of our constitutional ethos which bolsters the integrity of the judiciary by focusing attention on its functions,” the bench said.

Documents, records

SC/ HCs seeking should stop seeking original records from lower courts

AmitAnand Choudhary, SC: Higher courts needn’t be given original docus, April 29, 2018: The Times of India

‘SC/HCs Can Do With Copies Of Trial Court Records’

A month after ruling that stay on trial proceedings, particularly in corruption cases, must not exceed six months, the Supreme Court has taken another significant step to ensure speedy completion of trials, holding that the present practice of higher courts seeking original records of a case from lower courts must be done away with.

Original records are sought by the Supreme Court and high courts while hearing a plea of an accused challenging interim order of a trial court. The proceedings in the lower court get stalled till the documents are sent back to it from the SC or HC.

Now a bench of Justices A K Goel and R F Nariman has ruled the present practice must be done away with and the SC and HCs should get photocopies or scanned copies of the trial court records to decide the case and the original documents should remain with the trial court to ensure uninterrupted proceedings.

“We direct that if, in future, the trial court records are summoned, the trial courts may send photocopy/scanned copy of the record and retain the original so the proceedings are not held up. In cases where specifically original record is required by holding that photocopy will not serve the purpose, the appellate/revisional court may call for the record only for perusal and the same be returned while keeping a photocopy/scanned copy of the same,” the bench said.

The bench said its order was in continuation of the apex court’s March 28 verdict, in which it ruled that higher courts should not stay trial proceedings for more than six months. It had said lower courts could proceed after a six-month period, preventing the accused from dragging on the trial.

“To give effect to directions in judgment of this court dated March 28, we direct that wherever original record has been summoned by an appellate/revisional court, photocopy/scanned copy of the same may be kept for its reference and original returned to the trial courts forthwith,” the apex court said.

The court said the right of the accused has to be considered vis-a-vis the interest of society. Larger societal interests get affected due to delay in trial proceedings after the original records are sent to higher courts.

The apex court in its March 28 verdict said, “It is well accepted that delay in a criminal trial, particularly in the Prevention of Corruption Act cases, has deleterious effect on the administration of justice. Delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development. ”

SC ruled that courts should get photocopies of the records to decide the case and original documents should remain with the trial court to ensure uninterrupted proceedings

Fees, court-

Delhi HC annuls Court Fees Amendment

PTI, HC verdict finds place in Yale journal Sep 19 2016

A landmark judgement of the Delhi high court, which had struck down an 1870 law on court fees, has found place, along with four others from around the world, in a prestigious international journal published by the Yale Law School.

The judgement penned in 2013 by Justice Gita Mittal had struck down The Court Fees (Delhi Amendment) Act 2012 after declaring it “invalid and ultra vires the Constitution.“

The judge, who was heading the bench along with Justice J R Midha, had held that Delhi Legislative Assembly did not have the legislative competence to amend the Court Fees Act, 1870 and directed government to refund the higher amount collected from litigants as the amendment came in 2012.

In its publication `Global Constitutionalism 2015', which is part of the Gruber Program for global justice and human rights, the law school has incorporated the landmark judgement along with two from the European Court of Human Rights, one each from the Supreme Courts of the United States and Canada.

Judgements delivered through WhatsApp

Lower court initiates, SC disapproves

'Is this a joke?': SC blasts lower court for delivering order through WhatsApp, September 9, 2018: The Times of India

Have you ever heard of a trial in a criminal case being conducted through instant messaging app WhatsApp?

Bizzare but true.

This peculiar case has reached the Supreme Court, which was left wondering as to how this kind of a "joke" was allowed to happen in a court of law in India.

The case, involving a former minister of Jharkhand and his MLA wife, saw the lower court judge in Hazaribagh putting these accused on trial by pronouncing the order framing charges against them through a 'WhatsApp' call.

Former Jharkhand minister Yogendra Sao and his wife Nirmala Devi, who are accused in a rioting case of 2016, were granted bail last year by the top court which had imposed a condition that they shall stay in Bhopal and not enter Jharkhand except for attending the court proceedings.

Both the accused have now told the apex court that the trial judge had on April 19 this year framed charges against them through a 'WhatsApp' call despite they raising objections to it.

A bench comprising Justices S A Bobde and L N Rao took serious note of the submissions and said, "What is happening in Jharkhand. This process cannot be allowed, and we cannot allow administration of justice to be brought into disrepute".

"We are here on the way of trial being conducted through WhatsApp. This can not be done. What kind of a trial is this? Is this a kind of joke?" the bench asked the counsel appearing for Jharkhand.

The bench issued notice to Jharkhand on the plea by both the accused, who have sought transfer of their cases from Hazaribagh to New Delhi, and asked the state to respond to it within two weeks.

Jharkhand's counsel told the top court that Sao has been violating the bail condition and had been out of Bhopal most of the time due to which proceedings in the case were delayed.

To this, the bench observed, "That is a different thing. If you have a problem with violation of bail conditions by the accused, you can file a separate application seeking cancellation of bail. We make it clear that we have no sympathy with those who have violated bail condition."

Senior advocate Vivek Tankha, appearing for the couple, said that the accused were granted bail on December 15, 2017 by the apex court in the case and they were directed to stay in Bhopal in Madhya Pradesh as a bail condition.

"The trial was directed to be conducted through video conferencing from district court in Bhopal and district court in Hazaribagh, Jharkhand," he said.

Tankha said that video conferencing connectivity was most of the times "very low" in Bhopal and Hazaribagh district courts and the April 19 order was pronounced by the trial judge through 'WhatsApp' call.

The bench asked Tankha as to how many cases were pending against both the accused.

Tankha said that 21 cases were pending against Sao, while nine cases were pending against his wife.

"They are both politicians and have led various protests against land acquisition done by the National Thermal Power Corporation (NTPC) in Jharkhand and most of these cases relate to those agitations," he said.

Tankha said that since both the them were lawmakers at the time of filing of these cases, the trial in these matters should be transferred to the special court in Delhi which is exclusively dealing with cases involving politicians.

Both Devi and Sao were accused in the case relating to violent clashes between villagers and police in 2016 in which four persons were killed. Sao had become a minister in the Hemant Soren government in August 2013.

According to police, Devi had led an agitation against NTPC authorities for their alleged attempt to forcefully evacuate villagers from Barkagaon without giving them due compensation or rehabilitation.

’Off the cuff remarks’ by judges

Supreme Court :High Courts should Avoid 'Off The Cuff' Oral Remarks

Mehal Jain, April 30, 2021: Live Law

Supreme Court Advises High Courts To Avoid 'Off The Cuff' Oral Remarks Which Can Be Damaging To Persons

"No no no! I am not talking about Your Lordships at all! I only wanted to say, since Your lordships have assumed the role of the Karta of our HUF, some high courts have made some very strong observations. The courts' concern is shared by everybody, but in these times of crisis, we must be very circumspect. Even as lawyers, we must be very circumspect", clarified the SG.

"I got your point. I even know the context in which you are talking. We have all been members of the bar and we all know that when judges say something in court, it is only to elicit information from the lawyers, to elicit a response from the lawyers, so as to enable an open dialogue. It is not the conclusion on anything- it is only to test the hypothesis of the lawyer and the other side", explained Justice Chandrachud.

"We are not against any lawyer. Just like when Mr Mehra (Rahul Mehra for the GNCTD) argues, we are at his back telling him on what counts he is wrong. It is not that we will hold him to be wrong at the end. Same is the case with the Solicitor General – we test and critique his arguments also", continued the judge.

"Of course, as judges, we must also confront that this is a new time that we are living in and every word that we say becomes part of the social media, or Twitter. All we can say that we expect a degree of respect restraint", expressed Justice Chandrachud.

"Particularly, in sensitive matters, we tend to exercise some caution and restraint. It is not because we are fearful of our remarks! Of course, we are independent! It is only because of the serious ramifications which off-the-cuff remarks about private citizens may have", continued the judge.

"Even when we are criticising a judgement of a High Court, we don't say exactly what is in our heart and we exercise a degree of restraint. We would only expect that as freedom has been given to the High Courts to deal with these issues, certain of-the-cuff remarks, which are not necessary maybe avoided", noted Justice Chandrachud.

"That will be enough, Your Lordships...As they say, a diplomat is a person who helps people who have differing points of view find common ground...that is the need of the hour", advanced the SG. "High Court judges are stressed about local conditions. So, at times, they may get emotional and make strong remarks. But we must not be so fragile as to get offended by them", added Justice Ravindra Bhat. "When we took up the suo motu case, there was an apprehension that we were going to withdraw the matters from the High Courts to ourselves and the bar attacked us. And now the tables have turned and the bar seems to have issues with the High Courts", quipped Justice Bhat in a lighter vein.

Justice Bhat was referring to the criticism from the bar against the Supreme Court's suo moto cognizance on COVID issues based on the apprehension that it was trying to take over the cases from High Courts. Yesterday, the High Courts of Madras and Delhi had made strong oral observations against the Central Government while hearing cases related to COVID19. The Madras High Court had raised questions at the preparedness of the Central Government in dealing with COVID second wave and had asked what the Centre had been doing for the past 14 months.

The Delhi High Court had questioned the Centre's oxygen allocation policy for the National Capital Territory of Delhi.

While dealing with the suo moto case on COVID-19 issues, the Supreme Court had recently clarified that it had no intention to stop the High Courts from dealing with such matters in their respective jurisdictions.

Today, the Election Commission had filed a petition in the Madras High Court seeking to stop media from reporting oral comments made by judges.

HC ‘murder charge’ remarks against EC were harsh: SC

Dhananjay Mahapatra , May 7, 2021: The Times of India

The Supreme Court termed the Madras High Court’s “murder charge” remarks against the Election Commission as “harsh” and the “metaphor inappropriate” as it walked a tightrope between praising the role of HCs during the pandemic and advising judges against making off-the-cuff remarks during hearings.

In a 31-page judgment on the EC’s plea against HC’s remarks, a bench of Justices D Y Chandrachud and M R Shah achieved three objectives — assuaged the EC’s hurt, ensured that judges did not feel restrained from questioning the actions of constitutional bodies and the executive during the pandemic, and expanded the media’s right to cover court proceedings. Writing the judgment, Justice Chandrachud said, “The remarks of the high court were harsh. The metaphor inappropriate.”

HC observations did not seek to attribute culpability to EC: SC

However, it was quick to clarify that it was not blaming the HC for remarks that could have been made during the flow of dialogue process intrinsic to judicial scrutiny of actions of constitutional bodies and the executive during the pandemic. “The HC, if indeed it did make the oral observations which have been alluded to, did not seek to attribute culpability for the Covid-19 pandemic in the country to the EC. What it would have instead intended to do was to urge the EC to ensure stricter compliance of Covid-19 related protocols during elections,” the bench said.

It clarified that oral observations by judges of superior courts did not form part of court records and were at best meant to elicit a studied response from the authorities for reaching a just conclusion. “These oral remarks are not a part of the official judicial record and, therefore, the question of expunging them does not arise. It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing,” it said.

However, the bench appeared worried about an emerging trend of judges making caustic observations against litigants during hearings, be it constitutional bodies, governments or individual litigants. “We must emphasise the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation,” Justice Chandrachud said.

Post-mortem examinations

Doctor’s statement needed even if his report exhibited/ SC

AmitAnand Choudhary, Indian killed abroad, SC says examine doc who did post-mortem, April 19, 2019: The Times of India

The Supreme Court has said that geographical distance should not come in the way of examining a witness in a criminal case and courts must take all steps to record the statement of a witness who resides in a foreign country and video-conferencing facilities must be used.

A bench of Justices A M Sapre and Dinesh Maheshwari directed a trial court in Rajasthan to take all necessary measures to ensure the examination of a Nigeriabased doctor in the case of a woman who died in mysterious circumstances in the African country. The woman’s parents have accused her husband of murdering her. The woman was found hanging in her room in 2010.

SC overrules HC order, says doc’s testimony is necessary

The first post-mortem examination of the body was conducted by Dr I Yusuf who stated that the cause of death was “asphyxia secondary to strangulation”. Thereafter, the body was brought to India where a medical board was constituted for further postmortem examination but the board said no definite opinion could be formed regarding the time and cause of death. The woman’s parents then filed a criminal complaint against the husband and alleged that she was being tortured for dowry. After investigation, a chargesheet was filed against the husband for the offences of murder and cruelty. The parents thereafter filed an application to summon Dr Yusuf and said his testimony was essential to find the cause of death. The trial court and the Rajasthan high court dismissed their plea and said it was not necessary to record the doctor’s statement as a copy of the postmortem examination report prepared by him had already been exhibited.

The Supreme Court, however, quashed the orders of the trial court and the high court and said the doctor’s testimony was necessary to decide the case.

Protests against court orders

2016: SC cites 2009 judgment

Dhananjay Mahapatra, Cannot protest or call bandhs against court orders: SC, Sep 16 2016 : The Times of India (Delhi)

`Duty Of K'Taka, TN To Quell Cauvery Stir'

The Supreme Court said in Sepy 2016 that no one could agitate on the streets or call bandhs to protest against a court order and once again rebuked the Karnataka and Tamil Nadu governments for failing to curb mob violence over the Cauvery water dispute.

A bench of Justices Dipak Misra and U U Lalit said, “The people cannot become a law unto themselves and, therefore, it is obligatory on the part of the authorities of both states, Karnataka and Tamil Nadu, to prevent such actions. We are compelled and constrained to say that it is the duty of the states to see that no agitation, damage or destruction takes place.“ The bench's September 12 order reducing the daily release of Cauvery water by Karnataka from 15,000 cusecs to 12,000 cusecs did not quell violent protests in both states, despite the court warning the governments and the protesters of dire consequences.

On a PIL by social activist P Sivakumar from Kanyakumari seeking a direction to the authorities in both states to take preventive measures to quell violent protests, the bench said, “The fundamental purpose is that there can not be any agitation when it relates to an order passed by the court. It (a court order) is to be complied with and, in any case, if there is difficulty, the concerned parties can approach the court.“

After asking both state counsels to be prepared to answer questions on their failure to maintain law and order, the bench said, “We sincerely hope that wisdom shall prevail over the competent authorities of both states to maintain peace.“ Shivakumar's counsel Adish Agrawala said inhabitants of both states were resorting to competitive protests against the SC order directing Karnataka to release water to Tamil Nadu. “If one party resorts to `rail roko' (stopping train services) on one day , the other party emulates it the next day ,“ he said.

The court said it felt the situation was returning to normal. However, Agrawala said there were fresh inci dents of violence and the `rail roko' agitation was on in Karnataka on Thursday , while Tamil Nadu protesters have decided to do the same on Friday .

The bench extracted guidelines laid down by the apex court in its 2009 judgment for the police in handling violent protests. “The state government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the high court or the Supreme Court as the case may be for the court in question to take suo motu action,“ the SC had said in 2009.

Can SC shut right to protest its orders?

Dhananjay Mahapatra, Can SC shut citizens' right to protest against its order?, Sep 19 2016 : The Times of India

Right to freedom of speech and expression guarantees individuals the liberty to express themselves, criticise others and comment on issues. All these must necessarily be peaceful. But can any court shut an individual's right to protest against judgments and orders?

The Supreme Court did just that in the contentious Cauvery water issue. Escalating protests coupled with violence in Karnataka and Tamil Nadu made the SC say , “There cannot be any agitation when it relates to an order passed by the court.“

The SC was right in asking the authorities to clamp down on violence. But the anxiety to see return of normalcy cannot be a ground to convey that even peaceful protests and agitations against SC orders would not be tolerated.

We are witness to public protests against orders of the highest courts world over, including India.On June 2015, the US Supreme Court by a slender five to four majority declared gay marriages con stitutionally valid, mandating all 50 states of the federal republic to recognise same sex unions (Obergefell vs Hodges, Director, Ohio Department of Health).

The LGBT community celebrated. But the church erupted in protest. Billy Graham Evangelist Association, Southern Baptist Ethics and Religious Liberty Commission and US Bishops Conference virtually rebelled against the judgment. Some of the churches said they would not conduct same-sex marriages.

In India, too, we witnessed this.An SC judgment closed a small window opened for the LGBT community by the Delhi High Court, which decriminalised Section 377 to exempt consensual relations between adults of the same sex in private from penal consequences.

The rainbow community protested, albeit peacefully, against the SC judgment.

The SC's decision to limit the height of `dahi handi' and bar participation of minors in Janmashtami celebrations in Maharashtra saw 500 `dahi handi mandals' congregate at Shiva ji Park on August 22 to protest against the court or der. In May , several hundred Kosovo Albanians protested against a ruling of the Kosovo Constitutional Court for confirming the rights of Serbian Orthodox Visoki Decani monastery to 24 hectares of land.“The constitutional court trespassed on justice,“ read the banners with protesters.

A person may militate against a perfectly valid and legitimate court order because in his perception it was an unjust judgment. Can we deny him the right to protest against the court order? Are court orders infallible?

Even the SC cannot claim infallibility. More than 70 years ago, US SC judge Robert H Jackson had said judges, despite being addressed as Lords, shared the human susceptibility to err.

In Brown vs Allen, (1944 US 443 at 540), he had said, “Reversal by a higher court is no proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.“

True, Indian Constitution under Article 144 mandates “all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court“. But it does not even remotely suggest that while implementing an SC order, one must wholeheartedly subscribe to it. A five-judge bench of the SC in Bihar Legal Support Society vs Chief Justice of India (1986 SCC (4) 767) had in a short and crisp judgment told judges that they were neither infallible nor their words the last. Legally may be, but not in the perception of a common man.

The society's petition had protested against a midnight sitting of the SC to grant bail to two industrialists -Lalit Mohan Thapar and Shyam Sundar Lal -and asked the CJI why similar expeditious hearing was not accorded to bail petitions of poor men languishing in jails? This question is ironic and bound to inspire a feeling of deja vu in those who have been following the SC for some time.

The SC had conceded that it would not be possible for it to right all wrongs because it was not immune from making mistakes. To make judges realise that they did not possess the panacea for all ills, it had said, “The apex court must interfere only in limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, blatant and atrocious miscarriage of justice.

“Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers.“

The 30-year-old judgment needs to be put up in bold big font in the inner chambers of the SC, which has forayed into unimaginably diverse fields from constitutionality of jokes on Sikh community to mushrooming of NGOs.

Reasons behind judgments

‘Delays in giving reasons a violation of right to life’

Dhananjay Mahapatra, November 2, 2020: The Times of India

SC says rehear case as HC delays verdict’s reason

Breach of a 19-year-old guideline laid down by the Supreme Court to high courts and trial courts to be prompt in providing reasons behind judgments led the SC to observe that inordinate delay in giving reasons for a verdict violated litigants’ right to life, reports Dhananjay Mahapatra.

The Aurangabad bench of the Bombay high court had given a cryptic judgment in a case on January 21, saying “reasons will follow”, meaning that the detailed verdict would be given later.

‘Delays in giving reasons behind verdicts violation of right to life’ The litigant filed an appeal in March against the HC judgment well within the 90-day limitation period. The appeal could not be listed as the litigant had not provided the detailed judgment giving reasons behind the verdict.

Finally, the appeal got listed before a bench of Justices Sanjay K Kaul and Hrishikesh Roy in the SC. The bench was informed by the appellant that the reasoned order has not yet followed, even after almost nine months of the cryptic order deciding his case.

When the SC sought an explanation from the registrar of the Aurangabad bench of the HC, the reasoned order was given on October 9, almost nine months later.

Speaking for the bench, Justice Kaul said, “We must note with regret that the counsel extended through various judicial pronouncements, including the one referred to aforesaid, appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher court.”

Terming delays in giving reasons behind judgments as violation of right to life of a litigant, the bench said, “The problem gets aggravated when the operative portion is made available early and the reasons follow much later. It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months.” The SC set aside the HC order and asked the Aurangabad bench, which does not comprise the earlier judges, to hear the case afresh while giving protection against coercive action from Maharashtra government to the litigant.

The SC in its 2001 judgment in the Anil Rai case had said that pronouncement of a judgment must not exceed two months after a bench reserves verdict. It had said that if the judgment was not given even after expiry of three months, then the parties could move the chief justice concerned for a direction for early pronouncement of judgment. If no judgment was given even after six months of reserving the verdict, the parties concerned could move the chief justice for a fresh hearing in the case.

‘Sealed cover jurisprudence’

2019/ SC disapproves of the practice

Amit Anand Chowdhary, Dec 5, 2019 Times of India

The Supreme Court disapproved of the practice of courts forming opinion and passing observations against accused on the basis of probe reports filed in sealed envelopes by probe agencies and said it was against fair trial and courts should refrain from recording any findings about offences while deciding bail pleas.

While setting aside a Delhi HC verdict rejecting former finance minister P Chidambaram’s bail plea, a bench of Justices R Banumathi, A S Bopanna and Hrishikesh Roy objected to the HC judge giving his findings on the merit of the case on the basis of a confidential report filed in a sealed envelope by ED.

It said there was nothing wrong in the HC judge perusing the probe report to satisfy his conscience while deciding on the bail plea but he should have refrained from recording the findings on the merit of the case. “It would be against the concept of fair trial if in every case the prosecution presents documents in a sealed cover and the findings on the same are recorded as if the offence is (sic) committed and the same is treated as having a bearing for denial or grant of bail,” the bench said.

On the basis of ED’s confidential report, HC judge Suresh Kait had, while denying bail to Chidambaram, said “he appeared to be kingpin” in the case. Objecting to the observations, the bench said, “Hence in our opinion, the finding recorded by the learned judge of the high court based on the material in sealed cover is not justified.”

This was the second time that the SC had frowned upon Justice Kait for making observations on the basis of contents of a sealed envelope, apparently containing details of investigation, submitted to him by probe agencies. The judge had passed similar observations while rejecting Chidambaram’s bail plea in the CBI case and the SC had said such practice of recording findings on merit of the case should have been avoided.

The SC’s indulgence of evidence submitted to it in sealed envelopes by agencies is not new. It had entertained “sealed envelopes” in important cases — the Gujarat riots, coalgate and 2G scams which were monitored by it. However, of late the SC has drawn criticism for what has been referred to as “sealed envelope jurisprudence”. The court said it had “consciously refrained from opening the sealed envelope” filed by CBI while deciding Chidmabaram’s bail plea. But it had to peruse the confidential report in the ED case as the HC had relied on it.

‘Stay’ orders

Courts can’t ‘stay’ civil, criminal case trials for over six months: SC

April 29, 2018: The Indian Express

If there is no such speaking order, the trial courts may, on expiry of the six months resume the proceedings without further wait, the court said.

The Supreme Court ruled that stay orders on the proceedings in any pending trial — civil or criminal cases — would automatically lapse after six months, unless extended by a speaking order that explain the need for the stay order.

If there is no such speaking order, the trial courts may, on expiry of the six months resume the proceedings without further wait, the court said.

“Situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases, but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up,” a bench of Justices Adarsh Kumar Goel, Rohington Nariman and Navin Sinha noted while disposing a batch of appeals.

Laying down the contours of the “speaking order,” the bench said: “The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalised. The trial court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay, so that on expiry of the period of the stay, proceedings can commence unless order of extension of stay is produced.”

To buttress the point about cases getting delayed on account of stay orders, the bench referred to an earlier order of the court where it had referred to statistics. “Average pendency per case (counted from the date of stay order till 26-7-2010) works out to be around 7.4 years. Charge sheet was found to be the most prominent stage where the cases were stayed with almost 32 per cent of the cases falling under this category. The next two prominent stages are found to be ‘appearance’ and ‘summons’, with each comprising 19% of the total number of cases,” the bench said.

The issue came up during the hearing of an appeal against a Delhi High Court order in a corruption case against some officials of the Delhi Municipal Corporation.

The top court said though high courts could entertain review petitions, it should do so “consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered” and in “rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter.”

Where the high court entertains challenge to an order framing charge, “decision of such a petition should not be delayed,” the apex court said. It said that though no mandatory time limit could be fixed, “normally it should not exceed two-three months.”

Use of particular expressions

'Separatist': can't use that term in court

Dhananjay Mahapatra & Shailaja Neelakantan, SC rejects plea to stop central funds for Kashmiri 'separatists', Sep 14, 2016: The Times of India

The Supreme Court not only dismissed a PIL that sought to stop Central funds and security being given to 'separatists' in Kashmir, it also slammed a lawyer for calling Hurriyat leaders 'separatists' and refused to use that term in its order.

"It's a matter of perception. Has the government declared them separatists? The conduct of a man may not be to the liking of others and (so) they call him separatist, but you can't use that term in court," a Supreme Court bench of Justices Dipak Misra and UU Lalit said.

’Judiciary cannot examine what funds are given to whom’

The PIL filed on September 8 said that more than Rs 100 crore is spent - for foreign travel, security and other expenses - on separatists by the government. On top of that, the PIL said, the separatists then misuse the money for anti-India activities .

To that, the apex court today said the judiciary cannot examine what funds are given to whom+ , when it comes to managing the situation in a sensitive state like Jammu and Kashmir. It added that any security cover given by a government to a citizen who faces threats, is completely within the domain of the executive.

"Security issues cannot be handled through judicial proceedings and courts must desist (from) entertaining such issues," the bench chastised ML Sharma, a lawyer who filed the plea in his personal capacity.

The court's comments seem like an about-turn from the ones it made on September 8 2016 when it decided on which date to hear the PIL. At the time, the court said it felt the same as the petitioner who filed the PIL to stop funding the so-called separatists+ .

"We also share the same feeling. Everybody sitting here feels the same" the country's top court said, according to ANI, to the petitioner ML Sharma.

Witness deposition

Cannot be deferred at accused’s request: SC

Dhananjay Mahapatra, SC: Can’t defer witness deposition at accused’s request, November 7, 2018: The Times of India

The Supreme Court has ruled against deferring witness deposition in a criminal case at the mere request of an accused and said courts of law had a duty to protect both the right of an accused for fair trial and the prosecution’s endeavour to prove its case. It also laid down a nine-point guideline for courts for conduct of criminal trials.

Reversing a Kerala High Court decision quashing a sessions court verdict against murder accused and Youth Congress leader Rasheed, an SC bench of Justices A M Sapre and Indu Malhotra said “a balance must be struck between the rights of the accused and the prerogative of the prosecution to lead evidence”.

During trial of the case relating to murder of one Satheesan in Thrissur, Rasheed had sought adjournment of cross-examination (interrogation by opposite party) of a witness, Narayanan, till the examination-in-chief (examination by the party which has cited him/her as a witness to elicit evidence in his favour) of other witnesses. The sessions judge refused and said the accused were “highly influential political leaders” and there was a possibility of threats to witnesses after their examination-in-chief. The HC had reversed this order and deferred Narayanan’s cross-examination.

Setting aside the HC order and disallowing deferment of deposition by Narayanan, the bench said though discretion has been conferred on trial judges to grant deferment of deposition or examination of a witness, the same has to be exercised in exceptional circumstances and when the accused put forth a “very strong ground”.

Writing the judgment for the bench, Justice Malhotra laid down a nine-point guideline and said it “should be followed by trial courts in the conduct of criminal trials as far as possible.

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