Video Recordings to end the Opacity in the Courts

      It is an oft-repeated saying that ‘sunlight is the best disinfectant’. There is no denying that transparency in every sphere of life works like auto-cleaner while the opacity breeds suspicion and corruption. It is, therefore, indeed laudable that the Supreme Court has taken up the cause of transparency in the right earnest by directing the audio-video recording of the court proceedings across the country.  The benefits of video recordings will far outweigh the disadvantages and bring order and solemnity to the proceedings. It has been a long-standing demand of the people throughout the country that the proceedings of the court should be recorded to ensure good conduct of the advocates and the judges.

         It may be mentioned that the Chief Justice of India and the Prime minister have already spoken about the setting up of e-courts in the country as a method of reducing pending litigation and introducing transparency. There are several systems of e-courts that are successfully functioning in other countries. One major benefit of this system, which could be introduced even in our existing system, is the transcription of court proceedings, which can be recorded electronically verbatim and transcribed instantly. The transcripts can be made available to the parties of the proceedings at the end of the day. There are serious advantages of this system for all - the judges, lawyers and parties to the litigation. Since every word of the arguments gets recorded, transparency and clarity are inherent. This brings ease when a case is taken in appeal or an order is up for review. Counsel too benefit by having details of arguments recorded for the next day's preparation in the case. The litigants have complete clarity on their case even if not present in court. A win-win for all. With the availability of technology, this system would be an excellent way to introduce E-Systems. 

        Video recording of the proceedings is a path-breaking and tectonic change in the functioning of the Indian courts. Although Section 327 of the Criminal Procedure Code already provides that ‘the place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court to which the public generally may have access’. The second part of the same section says for the in-camera trial of causes related to rapes.  Therefore, this direction of the Supreme court is the major extension of the procedure that is laid down in the Criminal Procedure Code. It is here the technology will come into full play for the enormous benefit of the people.  Till now the general public and others have been depending on the sketchy and many times lop-sided reporting of the proceedings by the media. This has also caused a number of times consternation among the people, advocates and judges.

        One observation of the Supreme Court bench consisting of Justice Adarsh Kumar Goel and Justice U.U. Lalit will go down in the history in golden letters that ‘there is no privacy in the court, what comes to the court is all public’. The Judges, in the course of the hearing, also said that constitutional courts in other countries have already the provision of audio and video recording because it is not a matter of the privacy of the judges. Citing the example of the Supreme Court of United States of America the bench said that their proceedings are also available on the ‘YouTube’.

        The beginning of the end of opacity, in fact, started on 28^th March this year when the Supreme Court directed that at least two districts in every State and Union Territory shall install CCTV cameras at important locations in court complexes. Later in the next date of hearing the Court further observed that ‘the Supreme Court and the High courts are the courts of the records being the constitutional courts, therefore, everything should be recorded as long as it does not impede the proceedings’. The Court said that though our earlier direction was to install CCTV cameras in two districts in every State/Union Territory, with the experience now gained, it is desirable that CCTV cameras are installed in all courts. 

       Pursuant to the direction of the Supreme Court the Union Law Ministry swung into motion and it found to its pleasant surprise that fifteen High Courts of the country have already implemented it and other High Courts are in the process of installing the CCTV cameras. The Additional Solicitor General Ms Pinky Anand, who appeared for the Central government produced an affidavit setting out the progress made in this regard. It reveals that most of the fifteen high courts that replied have followed the Supreme Court’s direction to set up CCTV facilities in at least two districts, and are using a phased approach to do the same in other districts. In addition to these High Courts, as many as nine tribunals, including the NCLAT, TDSAT, CAT and IPAB, also responded with progress on the issue. Nine high courts – those of Bombay, Gauhati, Jammu & Kashmir, Jharkhand, Kerala, Orissa, Madhya Pradesh, Meghalaya and Uttarakhand – are yet to respond.

        In spite of the open court hearings, the reporting of the court proceedings has been a zealously guarded affair. The to and fro between lawyers and judges, the submission made by the advocates and questions asked from the bench and reply there too given by the advocates have hitherto been beyond the eye of the camera or the ear of a recorder. Hence it will be, without doubt, a paradigm shift in the Supreme Court reporting. It may be noted here that only a few years ago, the proceedings of the Parliament and various legislative assemblies of the country were not within the reach of the common man of the country. Only the accredited correspondents were allowed to see the proceedings of the legislatures for report purposes. The general public could enter the halls of the legislatures and Parliament only by visitors’ pass issued on the recommendations of the Members of Parliaments or MLAs. But after the availability of the proceedings of the Parliament and Legislatures on television, it has become wide open to the whole world. The general public can now know as to what is being done by their elected representatives and is free to form its opinion about the performance of the Government and the opposition on the basis of the audio-visual recordings which are available on the television, computer or mobile screens.

        There are, however, many practical difficulties which may come in the way of recordings and the airing of the proceedings of hundreds of courts across the country. In case of Parliament, there are only two Houses which can be easily televised directly. But in the case of the televising the court proceedings, it will not be possible through one or two exclusive channels for showing the court proceedings. For example, as on today, there are fifteen courts in the Supreme Court of India. It will be unimaginable to beam the proceedings of all courts. Similarly, there are 28 High Courts in the country having hundreds of courtrooms making it well-nigh impossible to televise their proceedings. So, a different mechanism has to be found out. One of them is to have an archive of the recordings and appoint a group of editors to look into the cases which are worthy to be televised and take a decision accordingly.

         It hardly needs to be emphasised that audio-video records of the court proceedings will remove all doubts and apprehensions of the people with regard to happenings in the court and it will be immensely useful for the students, teachers and advocates of the court.   Although, a group of lawyers is of the view that recording of proceedings should not be made a spectacle because arguments might get more favoured for the cameras than for anything else, nevertheless for overwhelmingly large number of lawyers it would lead to public education helping in the formation of public opinion.

Murder of Arushi Remains an Enigmatic Mystery

There are some criminal cases, which remain deeply etched in the public memory for a long time to come. These cases evoke enormous interest and shake the conscience of the public. People feel fear, horror, brutality, mechanism, conspiracy and execution associated with such criminal cases. In criminal law, two components are necessary to prove the guilt of an accused person. One is mens rea i.e. intention behind the crime and the other is actus reus i.e. execution of the crime.

 This must be proved in the court of law by the evidence which may be circumstantial or based on the last scene theory or supported by the statements of indubitable eyewitnesses. In all such pieces of evidence, the link must be made complete. However, if there is any doubt in completing the missing link then the benefit of it always goes to the accused because the criminal law follows the principle that even if hundred criminal go scot free but an innocent person should not be punished.

 There are many cases criminal cases which have been perpetuated in the public memory by the media coverage. For example, the Nanavati case of Bombay (it was not a Mumbai then), which shook the entire nation. A decorated Naval Officer Nanavati had murdered a businessman Prem Ahuja, who was in the illicit relationship with his wife Sylvia. Many films have been made and books have been written on this sensational murder case. 

Another horrendous case of rape and murder recent times was that of a young para-medical girl, Nirbhya, in the year 2012. That generated a tsunami of anger throughout the country and the Government was forced to enact laws ensuring the safety and security of women and also quick disposal of such cases to meet the ends of justice to some extent. 

In the same category falls the murder mystery of Arushi, a 14-year-old teenager of NOIDA. Her parents, Rajesh Talwar and Nupur Talwar are Dentists. It attracted the attention of the whole country because of the wide and sustained media coverage.  Apart from Rajesh and Nupur Talwar, their servant Hemraj was also living in the flat. On the fateful day of 15 May, the family had dined together.

 After some time Aarushi went to sleep. On the morning of the 16th May 2008, Bharti Mandal, a maidservant rang the doorbell but when no one responded from inside she went up the staircase leading to the terrace of the flat to fetch the bucket and mop kept there. While coming down she found that no one had opened the door, she put her hand on the outer grill door, but it did not open, then she again pressed the doorbell on which Dr. Nupur Talwar opened the innermost wooden door and started talking to her. She asked Bharti Mandal where had Hemraj gone, to which she expressed her ignorance. Dr. Nupur Talwar then told her that Hemraj must have gone to fetch milk from mother dairy after locking the inner iron mesh door from outside and she told her to wait till Hemraj returned. Thereupon Bharti Mandal asked Dr. Nupur Talwar to give her key so that she may enter the house after unlocking the inner iron mesh door on which Dr. Nupur Talwar told her to go to the ground level and she would throw the key to her from the balcony. While Bharati Mandal was going down Dr. Nupur Talwar picked up a cordless phone and dialled Hemraj's mobile no. The call got connected but got disconnected after a couple of seconds. When Bharti Mandal came down Dr. Nupur Talwar told her that the door was not locked but only latched from outside. Thereafter Bharti Mandal climbed up the staircase and when she put her hand on the outermost iron grill door it opened and thereafter she unlatched the middle iron mesh door and stood there. She heard Dr. Rajesh Talwar and Dr. Nupur Talwar weeping on which she suspected that some thief had broken into the house. When Bharti Mandal inquired from her why she was weeping, Dr. Nupur Talwar asked her to come inside and see what had happened. Then Bharti Mandal came with Dr. Nupur Talwar inside the flat and stood outside Aarushi's room Dr. Nupur Talwar pulled the bed sheet with which her daughter was covered on which she saw that her throat was slit. She became frightened. Dr. Nupur Talwar told her to see what Hemraj had done. It appears until that time no one was aware that Hemraj was also lying dead on the terrace.

Within hours of the discovery of Aarushi's body, the flat was swarming with people, the policemen, the press, family friends, curious strangers descended on the Talwar's home.  The Police were informed, which arrived at the scene of the incident and started an investigation. Arushi was found dead in her bed with signs of sharp-edged weapons on her neck. The needle of suspicion revolved around Hemraj, who after committing the murder of their daughter was missing but when his body also found, then the mystery got further deepen. The Allahabad High Court found the chain of circumstances to be grossly incomplete and broken and said that ‘the circumstances of the case do not lead to the irresistible conclusion that the appellants alone are the perpetrators of crime in question and on the evidence adduced in this case certainly two views are possible; one pointing to the guilt of the appellants; and the other to their innocence and in view of the principles expounded by the Apex Court, we propose to adopt the view which is favourable to the appellants.’  We hold that the prosecution has failed to prove its case against the accused beyond all reasonable doubts.’ Therefore, they stand acquitted.

 The scathing attack of the trial judge by the High Court is certainly quite a new trend in the judgement and beyond any justification. In its diatribe against the trial judge, the High Court has said that ‘the learned trial Judge has prejudged things in his own fashion, drawn the conclusion by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story propelled by vitriolic reasoning. Thus, basing the finding of conviction without caring to see that it is a case based on circumstantial evidence things cannot be presumed and stuffed in a manner like the present one by adhering to self-created postulates then roam inside the circle with all fanciful whim. The learned trial Judge took evidence and the circumstances of the case for granted and tried to solve it like a mathematical puzzle when one solves a given question and then takes something for granted in order to solve that puzzle and question. But the point is that the learned trial Judge cannot act like a maths teacher who is solving a mathematical question by analogy after taking the certain figure for granted. The learned trial Judge has aberrated and by dint of fallacious analogy and reasoning has surprisingly assumed fictional animation of the incident as to what actually took place inside and outside the Flat, and like a film Director, he has tried to thrust coherence amongst facts inalienably scattered here and there.’ 

Certainly, such recalcitrant mindset in interpreting facts vis-a-vis circumstances of the case and evaluation of evidence ought to have been shunned. Consideration of merit should be based only on evidence and circumstances apparent on the record, crystallizing the truth in substance and alluding to the certainty of the decision, backed up by reasonable analogy and scrutiny by the trial Judge as that alone would always be the best approach while deciding a criminal trial, said the High Court.

However, the million-dollar question remains that who killed Arushi? Will this enigma be ever solved?