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HP High Court Orders Video Conferencing For Recording Evidence

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HP High Court Order Video Conferencing for Evidence

Shimla-Last week an order has been passed by Hon’ble Justice Tarlok Chauhan of Himachal Pradesh High Court for taking evidence through video conferencing, rather than having the physical presence of the doctor in the Courtroom.

The order is thoughtful and is important in light of the fact that Doctors often have to appear in courts as expert witnesses to give their testimony in various legal cases. This leads to the neglect of the patients and also consumes precious time and resources required by the hospitals.

To meet such contingencies where the attendance of witness cannot be procured without an amount of delay, expense or inconvenience , the Courts have been bestowed with ample discretion to dispense with such attendance and order videoconferencing for taking evidences. In exercise of this discretions Courts are expected to adopt procedures which facilitates dispensing speedier and convenient justice.

However the practice is fairly alien to our State and remotely practiced in our country, the reason being lack of infrastructure and a lack of initiative, nonetheless there is a breath of fresh air from the recent order which has been passed by the Hon’ble High Court of H.P.

In a recent study, it was found that video conferencing as a substitute for physical presence in courts led to 43% drop in the monthly mileage of vehicles, 49% reduction in the fuel cost per month, and 28% savings in terms of time consumed for court duties. Satisfaction score for parameters of time consumed, physical strain, mental strain, communication with Honorable Judges, and overall experience was 87% through tele-evidence as compared to 31% with physical appearance. (Journal of Med. (2018). Tele-evidence 64(4), 206–211. doi:10.4103/jpgm.JPGM_243_17)

We have had very few instances where studies such as above have been utilised to undertake judicial reforms. Its only through efforts of innovative judges and lawyers that such practices have been adopted. For example in a similar case the apex court in 2003, in State Vs Doctor Praful B Desai, permitted recording of evidence of witness (doctor) staying abroad through video conferencing. The court stated;

“The Constitution and existing laws have to be looked into for discerning challenges thrown up due to emerging technological innovations. They have to be interpreted keeping this dynamic in mind”

There are various guidelines that are given from time to time by superior courts regarding the recording of evidence through video conferencing. Law applicable to such evidence recorded in courts includes 272 to 283 Cr.P.C. and Order 16, 18 etc. C.P.C. with some changes to avoid some technical issues.

By amendment in Cr.P.C in 2009, a proviso was added to subsection (1) of section 275 Cr.P.C. which states as follows:

“Provided that evidence of a witness under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence”.

Video conferencing is extremely useful in criminal cases as the burden on the police significantly reduces, the task of ensuring safety and providing security to the accused and witnesses is a challenge when at the same time the force is required elsewhere for doing various routine functions. In the most infamous case of Md. Ajmal Kasab the court permitted Kasab to appear through video conferencing, as the issues of security and convenience weighed heavy on its head.

In another case Bombay High Court taking suo-motu cognizance of a letter written by Shaikh Abdul Naeem, who was one of the accused in the Aurangabad Arms Haul case had directed the Maharashtra government to install video conferencing facilities in all courts in the state by the end of March 2017.

Last year in February 2018, it was reported that Jammu bench of Jammu and Kashmir High court for the first time heard 11 cases listed before Srinagar wing of High court through video conferencing.

The Division Bench of Madras High Court created history when it conducted the court proceedings over Skype from Chennai for the first time in a case related to 89 inmates of an unauthorized private children’s Home for girls run by Mose Ministries in Turuchi. In this case, girls rescued from the brothels in Delhi were repatriated and rehabilitated in their hometowns in several parts of India. To avoid any discomfort to them the court decided to take evidence through video conferencing.

Apart from India, there is a body of jurisprudence that has emerged in England through Roman Polanski’s case where the test of convenience, affordability and reliability of video conferencing have been accepted and is being used by the courts in a routine fashion. (Polanski v Condé Nast Publications Ltd [2005] 1 WLR 637.).

The order of the H.P high Court is hopefully the start for the building of infrastructure for this purpose in the State Courts and taking such an approach more often.

The great J.Bhagwati had once stated ;


“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind”

Note: The order has been passed in an individual case and may not be construed to be a regular practice of the Hon’ble Court, the same depends upon case to case basis.

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Deven Khanna is a Lawyer practising at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles he can be contacted at 7018469792 or at khannadeven@gmail.com. The personal blog is at https://lawumbrella.wordpress.com/

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The Curse of NGT Judgment – Undoing of Urban Planning

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Impact of NGT Orders on Shimla City's Development

Shimla– An old ‘common law’ proverb from the British era says “A man’s house is his castle, et domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge]”. This principle, which needs to be strengthened in a free country, is sadly in shambles and perhaps held more truth in the colonial times than it holds now. The level of insecurity a man has with respect to the ownership or for making improvements in his living space/house or building is increasing day by day because of unreasoned judgments of Courts or illogical executive dictates.

In these series of articles (1,2 & 3), the impact of various laws and judgments which have essentially worked for depriving the common citizens in State of H.P, of their ‘Right to Property” will be critically examined.

This article is aimed at academically discussing and pointing out the perversitie and manifest errors in the ‘NGT Judgement’ which was passed on November 16, 2017. The judgment banned all construction activities in the green and core areas and also within 3 meters from national highways. It also restricted the number of stories to two-and-a-half in other areas where construction was permitted to up to 4 to 5 stories.

THE UNHEARD VICTIMS

The Order adversely affects many different categories of people. For instance, a person who has a sanctioned plan in accordance with TCP Law/By-Laws/Rules, who had saved his ‘life savings’ for the construction of his house, is now stuck in limbo, having done nothing wrong. If a man had the approval and sanctioned plan of  ‘four and a half story’ building, which was permitted under TCP law, he is now told that he cannot construct the house in accordance with that initial sanction.

Another man who has his sole plot/property in the core area is prevented from doing anything with it, though he may have buildings on either side of his plot. The significance of the initial sanction and the mandate of the Town and Country Planning Act is bypassed by the Hon’ble Tribunal which is not even competent to decide the matter under such Laws (TCP Act/ MC Act). To add insult to injury, such persons are not even heard or paid compensation before they are so monumentally impacted by the decision.

The Constitution makers bestowed right on every citizen of the country to acquire, hold and dispose of property and  also provided ample safeguards against deprivation of the property by confining such deprivation only on payment of compensation to the expropriated owner. As such, the judgment is against the spirit of Article 300-A of the Indian Constitution.

IMPACTING DEVELOPMENT BY ABSURD AND BLANKET DIRECTION

1. Around 52 ‘Shimla Smart City Projects’, which aim at improving the infrastructural base of the city, are directly impacted by this judgment and are stalled. Such a wide impact of this blanket direction neither can be conceived nor can be expected to be implemented if the city has to grow. Further, such powers were never envisaged under the NGT Act which creates the Hon’ble Tribunal.

2. Another blanket and absurd direction is where the judgment prohibits new construction of any kind, i.e. residential, institutional and commercial in any part of the core area as defined under the various notifications issued under the Interim Development Plan as well by the State Government.

According to the standing laws of the State, the reconstruction in the green areas is permissible on old lines and construction in the core area with the permission of the State Government is also permissible, as per the existing laws (Notification/Statutes). If someone’s house is falling or has become structurally unsafe he should obviously be allowed to reconstruct on old lines, but this is also prevented as a consequence of these directions.    The tribunal has not quashed the relevant notifications which deal with this issue and has said something completely contrary to the existing laws. Now the situation is that we have two sets of laws, which are completely opposite to each other. The Tribunal doesn’t have the power to quash these laws nor interpret them.

3. The most Absurd direction is where the judgment says that beyond core, green and the areas falling within the authorities of the Shimla Planning Area, the constructions may be permitted strictly but not beyond two stories plus attic floor.

According to the law of the land, the construction in the core areas is being regulated by the provisions of the Interim Development Plan for Shimla as amended vide notification dated  28th June’ 2016, which clearly provides that the construction in the core area of Shimla is not story-based but is based upon the  maximum floor area ratio and maximum height of the building which is 1.50 to 1.75 & 21 meters respectively. Similarly, in the non-core areas of Shimla, the maximum floor area ratio is 1.75 & the maximum height of the building is 21 meters. Since the provisions of the Interim Development Plan for Shimla are still in operation, the same are now in conflict with the directions imparted by the Hon’ble Tribunal.

Traumatizing & Patent Illegality of the Judgement

There are numerous errors in the said judgment of the Hon’ble Tribunal, some are legal errors and others are factual errors. The judgment not only enters into a field which is outside its purview, but it also gives a shortsighted vision of its own in the matters of planning and development without comprehending the complexity of the factual problems which exists on the ground.

Though there are many flaws in the judgment, in this first article of the series, some of them have been enumerated as follows:

Firstly, the judgment dated 16.11.2017 has been passed in violation of the principles of natural justice and without giving an opportunity of being heard to those persons who stand adversely affected. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision-maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. Right of being heard is a right given to those parties who will be adversely affected by the decision. This right is a backbone for a ‘Fair Trial’. Such an important aspect of the judicial proceeding is missing in this case. Numerous persons whose property rights have been taken away have not been heard until now. The judgment should fall on this ground alone.

Secondly, the Tribunal is not even competent, or in other words, has the necessary jurisdiction to hear or decide matters relating to TCP Act or Municipal Corporation Act. The Tribunal is specifically established for matters which relate to ‘Environment’ and laws/Acts which deal with the protection of the same for e.g Environment Protection Act, Water Act, Air Act, etc. The tribunal certainly cannot br expected to interpret TCP Act and MC Act or bypass the mandate of Article 300 A and deprive persons of their houses or stop future government projects which are necessary for effectively implementing State policies.

Thirdly A peculiar problem which has arisen right now is that ‘Town and Country Planning Act’ provisions are not struck down and NGT judgment, which is saying something completely opposite, also stands. It is a rule of thumb that when the Courts have to disagree with a statuary provision for being unconstitutional etc., they will either quash it or read it down. NGT has done none of it, nor it could have done anything in this respect since these two acts are outside its jurisdiction. These acts fall within the jurisdiction of the Hon’ble High Court or the Hon’ble Apex Court.

When the law of the land has not been quashed or struck down, it obviously means that it is still the law of the land and has to be implemented. The judgment seems to be more on the lines of guidelines rather being a dictate or laying down an authoritative pronouncement.

Another fundamental flaw in the judgment is that the Tribunal has traveled way beyond the petition/application and what was prayed by the Applicant who approached it. The Courts, as a rule of practice, are limited to the pleadings which are filed before it, in this case, the Hon’ble Tribunal has gone far beyond the petition which it was deciding. The phrase ‘knight roaming in a shining armor’ is apt for this judgment. Here, the Court has set out to make right all the problems and evils of the State and has done future planning both for urban and rural areas and for the lakhs of inhabitants of such areas.

An important principle which has been forgotten in these blanket directions is ‘Actus curiae neminem gravabit’. The act of the Court shall prejudice no man. (Cumber v. Wane, i Sm. L. C. i ith ed. p. 338.)’.  The number of people who have been condemned unheard is astoundingly large. The livelihood of thousands is at stake, the development of the urban and rural areas of the State is at stake. These people are not criminals, these development plans are not out of the ordinary rather are a necessity for a growing city. The development plans have rightly been drawn by the competent authority under a well-established law. If the law is ‘common sense’ then this sense demands that these directions need a relook. If a law makes lakhs of people in the State as law breakers than there is something wrong with the law itself.

Right to Shelter, Challenges of Providing Housing to the Growing Population

It must be remembered that if everyone is compelled to make two and a half stories or not construct on vacant plots, it would lead to scarcity of housing or it would lead to cutting down of more trees as more land/surface area would be required to construct such houses. To sustain the growing population 4 to 5 storied buildings which if found structurally safe and not impacting the environment were perfectly reasonable and rightly allowed by the TCP/MC laws.

Right to shelter is a fundamental right and right of people to move from rural to urban areas is also a basic right. Both these rights stand defeated if these directions are not quashed. Housing will just become more and more expensive and out of the reach of poor and middle-class families. Old structures won’t be reconstructed, no new constructions will be raised, and no new Government projects can come up. The view of main Shimla town apart from Mall Road, which looks like a ghetto, will always remain like a ghetto.

In case of an earthquake, the chances of survival of the ‘High Court building’ (7 stories) and the ‘Cecil Hotel’ building (9 stories) are way more than the two-storied buildings of  Shimla’s lower bazaar /middle bazaar.  The point is that Morden technology and latest techniques of construction allow us to provide structurally safer buildings than what we had in the past. Further, they can also sustain more population in less surface area of land and fulfill a huge public purpose by doing so. The height of buildings as provided in municipal and TCP laws in accordance with floor to height ratio were reasonably arrived at by the competent authority. The Courts certainly are not equipped nor are expected to venture into this area which is outside their powers and tell us ‘how many stories can be built’, it is certainly the domain of the executive as they have experts with them and also have a better grasp of the ground reality (At least in theory).

The cost of such broad-ranging directions and ideas is very high – particularly on Shimla Town and its housing, making the cost of living and doing business costly and hurting the local enterprises, and thereby, shifting the planned outcomes into a different direction with respect to economic opportunities. The focus of the planning approach has to shift from ‘development restricting’ approach toward ‘development enabling’ approach and it requires finalization of the Developmental plan for the city. It is extremely surprising that Shimla City does not have a final development plan in place to date (this will be discussed elaborately in future articles).

There are numerous other directions and issues relating to the final development plan and some arbitrary TCP Rules such an “non inhabitable attics, no single window clearances and the power of the babus to extort money in passing of plans etc  which will be critically examined in the next article.

Disclaimer: The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher.

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Dark Sides of Aadhar Amendment Act & Plea to Connect Aadhar With Voter ID

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Dark side of aadhar amendment act and linking it to voter id

Shimla-The September 2018 Aadhar case verdict of the five-judge constitution bench had said that there was nothing in the Aadhaar Act that violated the right to privacy of an individual. The bench headed by the then Chief Justice of India Dipak Misra had also upheld the passage of the Aadhaar Bill as a Money Bill by the Lok Sabha. Against the said judgment a Review was filed and is still pending in the Apex Court.

This month again, a Retired Army officer SG Vombatkere and human rights activist Bezwada Wilson, have filed the petition challenging the constitutional validity of the Aadhaar and Other Laws (Amendment) Ordinance, 2019 and the Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019. The Supreme Court heard the petitioners and issued a notice to the Central Government and Unique Identification Authority of India (UIDAI).

The petitioners have submitted that the Aadhaar Ordinance created a backdoor entry to private parties to access the Aadhaar eco-system, thus enabling state and private surveillance of citizens. The regulations also permitted the commercial exploitation of personal and sensitive information, collected and stored for state purposes only, they have claimed.

“The Adhaar Ordinance and Regulations are manifestly unconstitutional as they seek to re-legislate the provisions of the Aadhaar Act, 2016 which enabled commercial exploitation of personal information collected for the purposes of the state (by permitting private parties to access the Aadhaar database), which were specifically declared unconstitutional in Supreme Court’s decision dated September 26, 2018, in Justice Puttaswamy v. Union of India,

the petitioners have said.

The petition further submits that through the regulations, the UIDAI has expressly sought to commercialize and gain financially through the large-scale collection of citizens’ private data and the use of Aadhaar database by private entities.  People’s data, which was collected for the Aadhaar database, is their private property and permitting this to be commercialized is an impermissible violation of their dignity under Article 19 and 21 of the Constitution

The Aadhaar Ordinance, according to the petitioners, was promulgated in an improper exercise of the ordinance-making power of the President under Article 123. The President of India Ram Nath Kovind promulgated the Aadhaar Ordinance on March 3, 2019, after the Aadhaar bill lapsed due to the dissolution of 16thLok Sabha.

LINKING OF AADHAR WITH VOTER ID 

Two hundred public-spirited individuals have written a letter to the Election Commission of India (ECI) to warn against the dangers contained in a petition before the Delhi High Court seeking an e-voting system using fingerprint and face biometrics and for that purpose, linking Aadhaar numbers with voter IDs. The high court has issued directions in Ashwini Kumar Upadhyay vs Union of India, asking the Election Commission of India (ECI) to consider the plea within eight weeks.

Urging the ECI to seek a dismissal of the Upadhyay petition, the individuals said that Aadhaar linkage would harm the right to vote that Indian citizens have under our democracy, flowing from the Constitution and the Representation of People’s Act, 1951.

While the Representation of People’s Act, 1951 currently limited universal adult suffrage to Indian citizens (including non-resident Indians (NRIs) still holding an Indian passport), the letter pointed out that under Section 9 of the Aadhaar Act, 2016, the Aadhaar number or authentication did not constitute proof of citizenship. Therefore, “linking of Aadhaar number with voter ID would effectively be an exercise involving significant public expense and yielding no benefit whatsoever in determining the genuineness of voters”.

Warning that the linking would not just “weaken and contaminate” the Indian electoral system but also harm the functioning of our democracy, the individuals reminded the ECI of the many instances where Aadhaar IDs had been found with non-nationals or there had been blatantly incorrect and fake enrolments.

“We also ask the Hon’ble Commission to recollect the disastrous outcome of the previous exercise of Aadhaar-Voter ID linking conducted as part of the National Electoral Roll Purification and Authentication Program (NERPAP) in 2015, due to which at least 30 lakh voters disenfranchised. As that exercise demonstrates, carrying out timely door-to-door verification of voters is as yet the most effective method of updating electoral rolls and ensuring accuracy of voter data,”

they said.

“We would like to point out that not only does possess an Aadhaar number fail to qualify the number holder’s eligibility to vote, biometric-linked authentication would, on the contrary, disenfranchise many rightful voters, in particular, the elderly, manual labourers, and those living in areas suffering a lack of electric power and/or network coverage,”

the letter said.

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Forest Fires – NGT Issues Guidelines for Effective Implementation of Action Plan for Control

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NGT Guidelines for controlling Forest-fires-in-himachal-pradesh

Shimla-Himachal Pradesh is the storehouse of biodiversity and animal life, which exists in perpetual threat of forest fires. Out of total 45,000 species of plants found in the country, 3,295 species (7.32 percent) are present in the state. More than 95 percent of flora species are natural to the state and characteristic of Western Himalayan flora, while about five percent (150 species) are exotic introduced over the last 150 years.

Forest department records show 22 percent, or 8,267 sq km of the total forest area, particularly in the mid and low hills, is fire-prone. Majority of the fires are reported from pine forests since, during summer, the trees shed pine needles that are highly inflammable for their rich content of turpentine oil. The pine forests are found up to an altitude of 5,500 feet.

Official figures show that 2018 was the worst year with 2,469 fire incidents reported — the highest in eight years — that consumed 25,300 hectares of forest across the state. In 2012-13, the second-worst year, pine forest fires consumed 20,773 hectares with a total of 1,798 cases.

There are 196 forest ranges in the state, of which 80 are most sensitive and fire-prone.

Recently A Coram of Adarsh Kumar Goel (Chairperson), J. and S.P. Wangdi (Judicial Member), K. Ramakrishnan (Judicial Member), JJ. and Dr. Nagin Nanda (Expert Member) in Rajiv Dutta v. Union of India laid down guidelines for effective implementation of the action plan for controlling forest fires.

Tribunal in one of its interim Orders had sought a report on:

  • Fire alerts
  •  Mapping of forest areas which are critical and vulnerable
  •  Steps for fire line cutting as preventive measures for forest fires

Further, in the same order, a direction was made to prepare “A National Policy” periodically, and keep it updated under Section 5 of the Environment (Protection) Act, 1986.

Section 5 of the Act envisages Forest Fire Management Plans, Crisis Management Policy, plans for relief, rehabilitation and restoration, financial resources, manpower, transport, fire-fighting equipment, community involvement, including 2 involvement of Panchayati Raj Institutions, Van Panchayats, satellite-based forest fire alert system in collaboration with the National Remote Sensing Agency (NRSA) and the Forest Survey of India (FSI), use of media for information, dissemination and awareness, having a nodal officer to oversee fire prevention and control at Head Quarters to coordinate with different Government agencies, dissemination of best practices and experiences, network of automated surveillance or watch towers/observation posts at strategic locations, mock drill exercises, capacity building at various levels.

The Hon’ble Tribunal, on the basis of the said report submitted by MoEF, gave the following guidelines:

  1. Though a comprehensive action plan had been duly adopted, its implementation required a robust institutional mechanism in view of the increase in the incidents of forest fires.
  2. Institutional mechanism for preventing and controlling forest fires may comprise of representatives of the MoEF&CC, Central Pollution Control Board (CPCB), Wildlife Institute of India, National Disaster Management Authority, Indian Council of Forestry Research and Education (ICFRE), Forest Survey of India (FSI) and the National Remote Sensing Centre representing the Central Government on one hand; and the Principal Chief Conservator of Forests of all the States/Union Territories on the other hand.
  3. The Central Monitoring Committee will be headed by the Secretary of MoEF with seven members mentioned in point no. (ii) above. The Secretary would be free to add any member or expert, apart from special invitees, if any.
  4. Central Monitoring Committee must meet once in three months and address all the issues arising out of forest fires, including the effective implementation of NAPFF.
  5. The Tribunal also noted that from the NAPFF, a national level database must be developed for burnt area assessment on a yearly basis.
  6. Standardized protocols and procedures must be developed by ICFRE and FSI to facilitate the reporting of the area affected and losses due to the forest fire.
  7. ICFRE was also directed to assist in designing and organizing adequate training programs for forest officials at various levels.
  8. The Secretary, MoEF&amp may issue directions for the constitution of an appropriate institutional mechanism at State levels also.

 

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