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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.

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.

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HP CM Jairam Makes Scandalous Comments on Judiciary, Says It’s Taking Decision Without Considering Merit

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HP Cm Jairam Controversial statement on Judiciary

Shimla-The courts are the guarantors of justice, whose role is fundamental in a State based on the rule of law, and it is imperative that they must enjoy public confidence. They must accordingly be protected from the destructive attacks that are unfounded.

In this day and age of robust media, the courts and judges are used to being criticized and take it on the chin. According to the settled law, one can freely criticize the judgments of the court. What is not permissible is to make statements that are  “an attempt to influence the court” and  “purported to scandalize the court”. 

The parliamentarians, especially, have a duty as elected representatives, to respect the independence of the courts and to ensure that any comments made are well-informed. As what is at stake is the “right to a fair trial” of a litigant and public confidence in the “administration of justice”.

Scandalizing the court’ is a convenient way of describing a statement which, although it does not relate to any specific judge, is a scurrilous attack on the judiciary as a whole, which is made to undermine the authority of the courts.

One such scurrilous attack undermining the Majesty of the Hon’ble Court came from none other than the Hon’ble Chief Minister of Himachal Pradesh Jairam Thakur on the State Administrative Tribunal (SAT).  As reported in Tribune News Service, dated May 14, the CM said:

“Though it would not be appropriate for me to comment on the functioning of the SAT, it has been witnessed that decisions are made without considering the merit of the case. There is very strong opposition amongst the ministers, party legislators, other elected representatives and organization leaders about the functioning of the SAT. So after holding deliberations with party MLAs, post elections, we could take a call on its future,

The Chief Minister said it was immaterial in whose term the Chairman or the Members of the SAT are appointed but the decisions must be fair and impartial. He did not mince words in stating that employees were getting stays on transfers without any merit. reported the newspaper.

The attributed statements appear to bring the court into disrepute, it asserts that the judges of the Tribunal are deciding cases without applying the law.

The statement refers to “Transfer Matters” and how they are not being decided to the liking of the Government. The statement implies that Government employee’s ‘transfer disputes’, which he raises against the Government, in the Tribunal, are not being decided in a way the Govt./ministers/organizational heads prefer. This is also given as a sole reason to shut down the tribunal in the future.

The attributed statements, on their face,  appear to influence the court in its decisions in ‘transfer matters’ and to interfere with the due administration of justice in the State. Comments conflate “correctness of decisions” with the satisfaction of political parties/ ministers/organizational heads. Further, the comments also are indirectly implying that the Tribunal is not “fair and impartial” in these matters.

The statement imputes unfairness when it says that “cases being decided without there being any merit’. This amounts to lowering the authority of the court and it certainly interferes with the performance of judicial duties. The minister has failed to respect the “doctrine of separation of powers” and breached the principle of “independence of the judiciary”.

Scandalising the Court Amounts to Contempt

The Chief Minister is not the first Chief Minister to make such scandalous remarks against the Courts. The famous case regarding a court being “scandalized” is that of E.M.S Namboodiripad v. T.N. Nambiar (1970). Namboodiripad, the then Chief Minister of Kerala had made a comment on how Marx & Engels considered the judiciary as an instrument of oppression and also that judges were guided and dominated by class hatred, class interests, and class prejudices. Found guilty of contempt by the Kerala High Court, the Chief Minister appealed to the Supreme Court, where a bench led by the Chief Justice of India, Hidayatullah, upheld the conviction and imposed fine. The judgment states,

“Judged from the angle of courts and administration of justice, there is not a semblance of doubt in our minds that the appellant was guilty on contempt of court. Whether he misunderstood the teachings to Marx and Engels or deliberately distorted them is not to much purpose. The likely effect of his words must be seen and they have clearly the effect of lowering the prestige of judges and courts in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification. We uphold the conviction.”

When the judiciary as such or a Judge, in particular, is attacked in this manner and the attack contains various kinds of imputations, such contempt is treated as scandalizing the court. The Oxford English Dictionary defines the word “scandalize” as “offend the moral sensibilities of; horrify or shock by a (real or imagined) violation of morality or propriety.”

To allow an insult and belittlement of an “institution of justice” is to expose the administration of justice to the grave danger of inhibiting the appreciation of the people of our courts, and the necessity of people confidently having recourse to our courts, for the settlement of their disputes. The faith in the judiciary is of prime importance.

It would be apt at this juncture to remember the wise words of Lord Denning the “best-known and best-loved judge of this, or perhaps any, generation” who said:

“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.

All we would ask is that … those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

No doubt the courts, while upholding the laws and enforcing them, do give support to one side but they do not do so out of any impure motives. They do not range themselves on-the-side of the Government when the law does not warrant so. To charge the judiciary as unfair and impartial, to say that the judges are not guided by law and cases are not being decided on merit, instinctively favouring the Government Employees, is to draw a very distorted and poor picture of the judiciary.

Whatever your political views, support your local judges and the institutions of justice. Its the only thing between you and the oppression by the powerful.

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Beyond Feudalism, A Step Towards Equality: HP High Court Gets 3rd Female Judge

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“There are too few women in the higher levels of Indian Judiciary and only three women judges in the apex court here is just “token representation”….

“There is a bias against women in India in terms of judicial leadership, although people don’t seem to realise their bias.”

-Justice Sabrina Mckenna – Hon’ble Supreme Court of Hawaii

India is a country where for a woman to rise to the top echelons of the societal pyramid is more often than not the exception and not the norm. When we are in colleges and universities we are taught about the principles of equality between the two sexes, but when we join the society, we come across the ground realities of Indian Society which dismiss the idea of gender parity as a mere utopian idea.

It is for the third time in history that a woman has been elevated as a Judge in Hon’ble High Court of Himachal Pradesh. Mrs. Jyotsna Rewal Dua, who has had an illustrious legal career, has been recommended by a resolution of a collegium of the Hon’ble Supreme Court for the aforementioned elevation. If appointed, she will be the sole woman judge of the Himachal Pradesh High Court.

The Late Mrs. Leila Seth, the first woman to serve as the Chief Justice of a High Court in India, which incidentally happened to be the Hon’ble High Court of Himachal Pradesh, in an interview, recounted her experience as a Chief Justice in the following terms:

“In most cases, male lawyers/judges, especially in upper Himachal, had a feudal mentality. They were not used to a woman sitting on their head. But as I was a mother of two boys, I knew how to handle men sensitively. I would gently ask their opinions first before ‘imposing’ mine on them. In Delhi, my male colleagues would introduce me as “meet our first lady judge”. I would take objections saying, ‘do you ever introduce your male colleague as ‘male judge’, so please avoid prefixing lady before me, a judge is a judge…. It didn’t often go down well with many.”

The Late Hon’ble Chief Justice’s experiences showcase the difficulties they the faces not only in the legal profession, which is perhaps just a microcosm reflecting the wider picture but also in Indian society. In this context, it is all the more impressive for Mrs. Dua to be recommended for elevation. As juniors, we would look on in rapt attention in the courtroom as Mrs. Dua made her submissions in a concise and precise manner without ever impinging on the court’s valuable time. Perhaps it was the ‘to the point’ nature of her submissions or perhaps her reserved nature, an extremely attractive quality in a judge, which struck a chord with the Collegium. Still, it is heartening to note that in the legal profession, which seems to be a bastion for men, a lady can rise to heights which an entire society is designed to keep her from.

In total, eight women have served as Judges of the Hon’ble Supreme Court in independent India. This number shows the extent to which women are suppressed. However, not to be entirely pessimistic, the Indian Judiciary and the legal profession as a whole seem to be at the very least trying to keep up with the times. At present, there are three sitting women judges at the Hon’ble Apex Court which is at the very least, an improvement.

Furthermore, in April, 2017, with the elevation of the Hon’ble Mrs. Indira Banerjee as the Chief Justice of Madras High Court, it was a momentous occasion for the Indian Judiciary when women headed the four Historical High Courts of Delhi, Bombay, Calcutta and Madras, these High Courts being first few set up in colonial India. These facts show that while the Indian legal profession still remains tilted in the favor of men it is moving in the direction of the utopian equality which was mentioned earlier.

As far as the recommendation to elevate Mrs. Dua is concerned, it could not have come at a more opportune time. The perspective of a woman is needed to garner a more humane approach while dealing with cases of rape, divorce, dowry and other matters where a male judge may not be fully equipped to understand the emotional difficulties women go through during these trials and tribulations. While the resolution to recommend Mrs. Dua for elevation is a welcome step, this author hopes for more women occupying our Constitutional and other critical positions in society and of course, the government.

Post by Author Ishan Kashyap (Advocate, HP High Court)

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Saving Gudiya – Laws, Rights of Victim, Role of Govt, Judiciary, and Society

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Saving Gudiya- Rights of rape victim and laws

It is seen in numerous cases of rape/sexual assaults, which we come across as lawyers, that victims experience confusion and uncertainty about what to do, what to expect and the logic behind each of the steps in the pre-trial as well as the trial stages. The lack of legal orientation, guidance creates enormous anxiety, leading to undue exploitation for gaining elementary legal information. Simple things as, providing FIR on time, providing companion during deposition or providing compensation or, free medical treatment are not made available.

To counter this exploitation, in this series of articles (Part 1,2 & 3), the endeavour of the author will be to inform in brief, the law regarding rape, how it has evolved through judicial decision, legislative enactments/ amendments, and executive instructions.

The articles will focus on the special care which needs to be taken with respect to the rights of the victims, by the Authorities and the Society.

The series of articles will also discuss different guidelines for sensitizing those who will come in contact with the victim. The problems faced by the victims (both pre and post-trial) and solutions to these problems also will be attempted.

Part -1 –
Victim, FIR & Medical Examination

The Victim

Rape victims deserve more from the legal system and society than just a prosecution. Rape causes a tidal wave effect on a victim’s life. The profound emotional, physical, economic, and social harm to the victim affects a broad range of life activities. The response to rape should be to

  • prevent the acute trauma of rape from triggering a long-term, downward economic and social spiral for the victim. and
  • to preserve the integrity of the victim’s privacy and social relations.

28 studies of women and girls aged 14 and older who had had non-consensual sex obtained through force, threat etc found that 60% of these victims didn’t acknowledge that they had been raped.

The major reason for this is “fear of stigma” and also “the body’s automatic response to trauma”. The victim needs time to acknowledge what’s happened to them.

Many Centres which are made for the survivors note that majority of the cases are reported much after the actual assault took place. Studies show that many victims, dropped the case, to protect their privacy, and ensure their emotional and physical safety.

The job of the responsible society is to support the victim and be sensitive to her mental and emotional needs throughout various stages of recovery.

FIR

The author wishes to start with giving a brief outline of settled law regarding FIR and Medical Examination which are the first steps after the assault. This is a critical stage where the victim is vulnerable, traumatized, stigmatized, and in need of immediate support. This topic is made the starting point, having in mind the alleged Shimla rape case and its present status.

The different processes in the pre-trial stage include the registration of the FIR,  the medical examination, arrest, S.164 statement to the Magistrate and cognizance, all must proceed promptly one after the other.

Registering an FIR is the first step in the process of setting the criminal justice machinery into motion officially. Without an FIR, criminal redress cannot be obtained. This is done under S.154, of the Criminal Procedure Code of India.

The Law, Know Your Rights;

  1.  It is mandatory for a police officer to file the FIR, failing which he may be punished with imprisonment for a period of 2 years.
  2. Police cannot blame the victim for her condition,
  3. Police cannot encourage the victim to reconsider or compromise the case.
  4.  In case the complainant approaches a police station within whose jurisdiction the offence does not fall, the police station can still not refuse to register the FIR. As per Advisory No. 15011/35/2013-SC/ST-W, issued by the Ministry of Home Affairs, they must take down the complaint as a ‘Zero FIR’, and then forward it to the relevant police station. The complainant is also entitled to a free copy of the FIR.
  5. FIR, cannot,  in any condition be prompted by the police.
  6. Victims have to be provided with a copy of the FIR, it is her statutory right.
  7. Police have to record the Experience of victims on getting her FIR registered, the police’s dealing with her can be probed into by the courts at the appropriate stage
  8. Police have the duty of Informing the victim, the procedure and her rights, at every stage and in all her dealings with them.

Medical Examination

The medical examination follows the registration of the FIR. The purpose of the examination under the amended law is to

  1. Provide first aid to the victim,
  2. Psychological counselling to cope with the trauma associated with the assault,
  3. Recording bodily injuries and condition for evidentiary purposes.

The Guidelines and Protocols for Medico-Legal care for victims of sexual violence, provide comprehensive instructions for the medical practitioner, family and the justice system.

A rapport must be established between Health professionals dealing with the case and the victim. Further, the medical examination must also include psychological counselling to help her cope with the aftermath of the assault, including in relation to the social and cultural notions of stigma and shame, within her family or community.

The Law, Know your Rights;

  1. An enabling atmosphere should be created and trust be established and the victim should be informed of all available resources, referrals, legal rights.
  2. The first step is to obtain informed consent/refusal from the victim for every step of medical examination and provide first aid
  3. Absence of signs of struggle DOES NOT signify consent.
  4. In cases of adolescents, age also needs to be verified.
  5. Whether drug/alcohol was administered has to be tested.
  6. If the victim is female then female doctors are to be preferred. For a transgender, the choice should be given to the victim.
  7. Police are not allowed in the examination room, however, a relative can be present if the victim so requests.
  8. Medical treatment is the first priority. A special room must be made available to maintain privacy. The hospital should not insist on admission until there is a requirement of observation/treatment.
  9. All services to victims should be free of cost, medicines prescribed must be available in the hospital, or the victim must be compensated.
  10. A copy of all documentation must be provided free of cost.
  11. While performing a forensic examination a medical opinion has to be formed on whether a sexual act was attempted or completed, whether it was recent and any harm has been caused to the victim’s body.
  12. If the victim comes to the hospital on their own without filing a report, it is the duty of the doctors to inform the police and provide medical treatment.
  13. A per-vaginum test or the 2- finger test should NOT be carried out and the status of the hymen is irrelevant to the factum of the sexual act. (More on this in subsequent articles)
  14. A urine pregnancy test has to be performed and blood has to be collected for HIV status and other tests etc. The type of evidence would change depending upon: nature of sexual violence, time lapsed between the incident and the medical examination, whether the victim has bathed/washed.
  15. Testing should be done for sexually transmitted infections.
  16. Emergency contraception may also be given.
  17. Victims should be informed of follow-up services and all follow-ups should be documented.
  18. Psycho-social care must be ensured and first line support be offered.
  19. If the victim reports with a pregnancy resulting from an assault she is to be given the option of abortion and protocols of MTP are to be followed.
  20. Stages of the examination should be explained.
  21. To address the victim’s emotional wellbeing crisis counselling must be encouraged. Suicidal tendencies must be assessed. Friends and family should be involved in the healing process of a victim. Reactions and the range of feelings which are common after a traumatic experience must be explained.
  22. Safety assessment must be done, and if the survivor is unsafe alternate arrangements to stay must be offered. If not, a safety plan must be made.

Health professionals should engage with family and friends to discuss ways of promoting a survivor’s well-being.

The medical examiner has to pack, seal and sign over the evidence to the police. One copy of all the documents has to be given to the victim. The hospital must ensure a designated staff.

Sexual assault victims should be understood as suffering from a myriad of brutal consequences that impact their civil wellbeing and they are at risk of re-victimization by the criminal justice process. Lawyers scholars, media must step forward and take up their struggle, and support them by sensitizing all relevant actors in society.

The next part will deal with the Legislative reforms, Court cases, and other stages of the trial.

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