* 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 ..... Petitioner
Through: Petitioner in person.
Versus
Union of India & Ors. ..... Respondents
Through: Mr. Jitendra Kumar, Adv. for UOI
Mr.Rajiv Bansal, Adv. for R-2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1 Whether reporters of the local papers be allowed to see the Yes
judgment?
2 To be referred to the Reporter or not? Yes 3 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 non-
intrusively audio-record judicial proceedings that involve his
participation before this Court and to so record either by himself or
WP(C) No.12787/2009 page 1 of 13
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 non-
intrusively 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
WP(C) No.12787/2009 page 2 of 13
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
WP(C) No.12787/2009 page 3 of 13
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
WP(C) No.12787/2009 page 4 of 13
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
WP(C) No.12787/2009 page 5 of 13
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
WP(C) No.12787/2009 page 6 of 13
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
WP(C) No.12787/2009 page 7 of 13
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
WP(C) No.12787/2009 page 8 of 13
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
petitioner’s 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
WP(C) No.12787/2009 page 9 of 13
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 litigant’s 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
the field. In Narinder Chand Hem Raj and Ors. v. Lt. Governor,
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
WP(C) No.12787/2009 page 10 of 13
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
WP(C) No.12787/2009 page 11 of 13
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 SANJIV KHANNA, J.
dk/pk
WP(C) No.12787/2009 page 12 of 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 12787/2009
Deepak Khosla ..... Petitioner
Through: Petitioner in person.
Versus
Union of India & Ors. ..... Respondents
Through: Mr. Jitendra Kumar, Adv. for UOI
Mr.Rajiv Bansal, Adv. for R-2.
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 SANJIV KHANNA, J
pk
WP(C) No.12787/2009 page 13 of 13