Professional Documents
Culture Documents
NOTICE OF MOTION
To :
1. UNION OF INDIA
Acting through
The Secretary
Ministry of Law & Justice
NEW DELHI 110 003
2. GOVERNMENT OF NATIONAL
CAPITAL TERRITORY OF DELHI
Represented by its
Chief Secretary
Players Building
I.P.Estate
New Delhi 110 002
4. HON’BLE REGISTRAR
High Court of Delhi
NEW DELHI – 110 003 … RESPONDENTS
IN THE MATTER OF:
DEEPAK KHOSLA ……….PETITIONER
Vs.
UNION OF INDIA & ORS. ……….RESPONDENTS
Dear Sirs,
Please take note that the accompanying Writ Petition is being filed by me on
behalf of my client before the Hon’ble High Court of Delhi under Article 226 of
the Constitution of India, and which may be heard by the Hon’ble Court on any
date on or after 27-10-2009.
Thanking you,
IN THE MATTER OF :
DEEPAK KHOSLA ….PETITIONER
Vs.
UNION OF INDIA & ORS. …RESPONDENTS
URGENT APPLICATION
The Registrar
Delhi High Court
New Delhi
Sir,
Kindly treat the accompanying petition as an urgent one. The grounds of urgency
are:
Further, the reliefs prayed for are all inter-connected, and it is not possible to
disassociate them and file separate applications, hence, the petition and
application may be put up before this Hon'ble Court in the manner presented.
Furthermore, as various judgments and provisions of law have been extracted and
reproduced in the petition, there is some underlining / bold to draw the attention
of the Hon’ble Court to the operative part of the judgment / law. This is necessary
to aid the Hon’ble Court to save its time. Therefore, it is requested that the same
may be placed before the Hon’ble Court despite office objections, if any, which
would be to our sole risk and cost.
We undertake that we shall not rely on any annexures that may be illegible.
[Under Article 226 read with Articles 13, 14, 19(1)(g), 20,
21, 39(a), 44 and 50, read with Articles 51A(b), 51A(h) and
51A(j) of the Constitution of India, read with Section 122
of the Code of Civil Procedure (1908), read with Section 7
of the Delhi High Court Act, read with Rules 14 and 18 of
the Delhi High Court (Original Side) Rules, 1967, read with
the Contempt of Courts Act, 1971].
Vs.
MEMO OF PARTIES
DEEPAK KHOSLA
S/o Shri R.P. Khosla
Aged about 50 years
House No.218
Sector XV-A
NOIDA 201 301 (U.P.) PETITIONER
AND
1 UNION OF INDIA
Represented by
Secretary
Ministry of Law and Justice
4th Floor, A Wing
Shastri Bhawan
New Delhi 110 001
Chief Secretary
Players Building
I.P.Estate
New Delhi 110 002
3 REGISTRAR GENERAL
Delhi High Court
Sher Shah Road
New Delhi 110 003
4. REGISTRAR
Delhi High Court
Sher Shah Road RESPONDENTS
New Delhi 110 003
NEW DELHI
Through :
K.V.DHANANJAY & SHEKHAR DEVASA
ADVOCATES FOR THE PETITIONER
127 Old Lawyers Chambers, Supreme Court,
New Delhi 110 003
099 029 09390 / 98 684 64180
-5-
IN THE MATTER OF :
DEEPAK KHOSLA ….PETITIONER
Vs.
1960 Nanavati vs. Prem Ahuja murder trial was concluded (with
an acquittal by the jury of the Ld. Trial Court, but which
acquittal was reversed by the Hon’ble Bombay High
Court, as it was then known, and which reversal was
upheld by the Hon'ble Supreme Court in November 1961),
a Bill was moved by one Shri Bibhuti Bhushan Das Gupta
in the Lok Sabha to consolidate and amend the law
relating to contempt of courts. The matter was referred by
the Government for further study to what came to be
known as the Sanyal Committee.
-7-
[Under Article 226 read with Articles 13, 14, 19(1)(g), 20,
21, 39(a), 44 and 50, read with Articles 51A(b), 51A(h) and
51A(j) of the Constitution of India, read with Section 122
of the Code of Civil Procedure (1908), read with Section 7
of the Delhi High Court Act, read with Rules 14 and 18 of
the Delhi High Court (Original Side) Rules, 1967, read with
the Contempt of Courts Act, 1971].
IN THE MATTER OF :
A Writ Petition filed under Article 226 of the Constitution of India for
the enforcement of the fundamental right of the petitioner,
guaranteed under Article 21 of the Constitution, to a timely and
transparent resolution of his legal disputes brought before this
Hon’ble Court ; for a declaration of entitlement to non-intrusively
audio-record relevant judicial proceeding, and for the issue of
corresponding restraint upon the officers of this Court.
BETWEEN:
DEEPAK KHOSLA
S/o Shri R.P. Khosla
Aged about 50 years
House No.218
Sector XV-A
NOIDA 201 301 (U.P.) PETITIONER
AND
1 UNION OF INDIA
Represented by
Secretary
Ministry of Law and Justice
4th Floor, A Wing
Shastri Bhawan
NEW DELHI 110 001
Chief Secretary
Players Building
I.P.Estate
NEW DELHI 110 002
3 REGISTRAR GENERAL
Delhi High Court
Sher Shah Road
NEW DELHI 110 003
4. REGISTRAR
Delhi High Court
Sher Shah Road RESPONDENTS
NEW DELHI 110 003
1
Schedule VII to the Constitution: List I. Entry 78. Constitution and
organisation (including vacations) of the High Courts except provisions as to
officers and servants of High Courts; persons entitled to practice before the
High Courts.
-14-
7. The Petitioner further submits that he has not located any legal
provision that bars a litigant from audio-recording judicial
proceedings conducted by this Hon’ble Court. This writ petition is,
therefore, filed purely ex abundanti cautela. The petitioner most
respectfully submits that if a provision of law existed which sought to
exclude or restrain or restrict a litigant from audio-recording court
proceedings relating to him without first ensuring that an official
transcription mechanism existed inside a Court, the vires of such
-15-
Position of the
Petitioner (as
Sl. Case No. Title Progress in the
party)
case
No.
1. Co.A No. 6 of 2008 Montreaux Resorts 45-50 of pre-notice
(P) Ltd & Anr. Vs. in review hearings Respondent No. 11.
Mr. Vikram Bakshi have been held next
& Ors. date is 12-11-2009.
2. Co.A No. 7 of 2008 R.P. Khosla vs.
Montreaux Resorts ---do--- Respondent No. 10.
(P) Ltd & Ors.`
3. CCP No. 15 of Montreaux Resorts Notice issued on 3- Arguing for his
2008 in Co.A No. 6 (P) Ltd & Anr. Vs. 10-2008 ; next date wife, petitioner
of 2008 Mr. Vikram Bakshi is 13-11-2009. Mrs. Sonia Khosla.
& Ors.
4. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 45-50 Arguing for his
Application No. 3 vs. Mr. Vikram times till date ;l no wife, petitioner
of 2008 Bakshi & Ors. hearing has been Mrs. Sonia Khosla.
held. next date is 6-
11-2009.
5. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 35-40 Arguing for his
Application No. 4 vs. Mr. Vikram times till date ; wife, petitioner
of 2008 Bakshi & Ors. practically no Mrs. Sonia
hearing has been Khosla.
held. next date is 6-
11-2009.
6. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 35-30 Arguing for his
Application No. 5 vs. Mr. Vikram times till date ; no wife, petitioner
of 2008 Bakshi & Ors. hearing has been Mrs. Sonia Khosla.
held. next date is 6-
11-2009.
7. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 30-35 Arguing for his
Application No. 1 vs. Mr. Vikram times till date ; no wife, petitioner
of 2009 Bakshi & Ors. hearing has been Mrs. Sonia Khosla.
held. next date is 6-
11-2009.
8. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 30-35 Arguing for his
Application No. 2 vs. Mr. Vikram times till date ; no wife, petitioner
of 2009 Bakshi & Ors. hearing has been Mrs. Sonia Khosla.
held. next date is 6-
11-2009.
9. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 30-35 Arguing for his
Application No. 3 vs. Mr. Vikram times till date ; no wife, petitioner
of 2009 Bakshi & Ors. hearing has been Mrs. Sonia Khosla.
held. next date is 6-
11-2009.
10. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 30-35 Arguing for his
Application No. 4 vs. Mr. Vikram times till date ; no wife, petitioner
of 2009 Bakshi & Ors. hearing has been Mrs. Sonia Khosla.
held.
-16-
11. Crl. Misc. (Co) Mrs. Sonia Khosla Listed around 30-35 Arguing for his
Application No. 5 vs. Mr. Vikram times till date ; no wife, petitioner
of 2009 Bakshi & Ors. hearing has been Mrs. Sonia Khosla.
held. next date is
13-11-2009.
12. CCP No. 215 of Montreaux Resorts Notice issued ; next Arguing for his
2008 (P) Ltd & Anr. Vs. date in the matter is wife, petitioner
Mr. Vikram Bakshi 18-12-2009. Mrs. Sonia
& Ors. Khosla.
13. CCP No. 216 of Montreaux Resorts Notice issued ; next Arguing for his
2008 (P) Ltd & Anr. Vs. date in the matter is wife, petitioner
Mr. Vikram Bakshi 18-12-2009. Mrs. Sonia Khosla.
& Ors.
14. CCP No. 217 of Montreaux Resorts Notice issued ; next Arguing for his
2008 (P) Ltd & Anr. Vs. date in the matter is wife, petitioner
Mr. Vikram Bakshi 18-12-2009. Mrs. Sonia Khosla.
& Ors.
15. CCP No. 343 of Montreaux Resorts Hearing is awaited.
2008 (P) Ltd & Anr. Vs. next date is 26-11- Petitioner No. 3.
Mr. Vikram Bakshi 2009.
& Ors.
16. CCP No. 165 of Montreaux Resorts Notice issued ; next
2008 (P) Ltd & Ors. Vs. date is 18-12-2009. Respondent No. 2.
Mrs. Sonia Khosla
& Anr.
17. Crl. Contempt No. Mrs. Sonia Khosla Notice issued on Arguing for his
4 of 2009 vs. Mr. Vikram 21-8-2009 ; next wife, petitioner
Bakshi. date is 4-2-2010. Mrs. Sonia Khosla.
18. Crl. Contempt No. Mr. Deepak Khosla Notice issued on 9-
22 of 2009 vs. Mr. Vikram 10-2009 ; next date
Petitioner.
Bakshi. is 4-2-2010.
12. Orders made by this Hon’ble Court in its various jurisdictions2 are
appealable, whether on intra-Court, statutorily or on special leave to
the Supreme Court. As such, every appeal pursued on any Order
made by this Hon’ble Court would invariably benefit from Court
transcription3.
14. Further, it has been a tradition with every High Court (including this
Hon’ble Court) to periodically assign different subjects to different
judges - what is known as a ‘Roster’. In view of the fact that the
average time consumed by a Bench to dispose a matter before it is
significantly higher than the typical duration of a Roster, it is only to
be expected that different judges may preside over the adjudication
of the same matter before a High Court. In the absence of a proper
record of the arguments delivered in a given case, a judge who
hears a case but does not conclude the arguments is disabled from
conveying the progress in a case to a different judge who takes over
the subject matter. The efficiency of a judicial proceeding is greatly
hindered when parties are forced to compensate their counsel for
idle or redundant appearances. As such, unless a proper record of
the oral arguments in a case is available, the delay in adjudicating a
case beyond the typical length of a roster results in substantial delay
and denial of justice.
-19-
16. The common law tradition that India has adopted recognises an
individual’s entitlement to justice. As such, even while lakhs of
litigants approach a Court, the cases they bring before a Court are
personal and private except in cases of public interest litigation. As
such, the harm that is caused by the delay in the disposal of an
individual case is both real and profound. Such harm is real to the
parties to that case and also to persons claiming under those
parties. As such, an individual party to a case is fully justified in
seeking to redress such harm in a manner sought in the present
petition.
18. The recording technology has been known to India for well over 70
years. In those 70 years, the technology has rapidly advanced and
the recording instruments have continually shrunk in size, as well as
5
Hussainara Khatoon v. Home Secretary, State of Bihar [AIR 1979 SC 1360 :
1980 (1) SCC 81]
6
‘To no one will we sell, to no one will we refuse or delay, right or justice.’ –
Clause 40, Magna Carta
-20-
19. It is submitted that the city of Delhi and its adjuncts, Gurgaon and
Noida, are home to several thousand transcription professionals who
have the expertise to transcribe the spoken word with 100 %
accuracy. Transcription software currently available in the market
assures a 99% percent accuracy, and the petitioner will take steps to
ensure that the transcription prepared for him will remain 100%
faithful to the spoken word. The petitioner will keep the audio-
recording file for his reference. The transcription would be promptly
made available in no time to the Bench, if so instructed by it. Copies
will also be freely distributed to the other parties to the case. For the
purpose of illustration, a copy of the transcript of oral arguments
before the Hon’ble Supreme Court of the United States in the case
-21-
20. It is further submitted that the Annual Report for this Hon’ble Court
published for the Financial Year 2007-2008 and made available on
the website of the Court at www.delhihighcourt.nic.in sheds light on
the factual aspects of judicial work at this Court. A copy of the same
is produced herewith and marked as Annexure C. A perusal of the
said report discloses an alarming number of arrears at this Court.
The arrears as on 31-Mar-2008 stood at 1,38,4118. It has been
estimated that at the current rate of disposal, a few hundred years
would be required to clear the arrears at this Court. However, if only
one were to review the ‘actual’ time which has been spent on
debating an issue before the Court, and the time consumed by
redundant debates is excluded therefrom, the ‘effective’ time spent
on adjudicating a case would be seen to be substantially lower than
the time actually consumed by that case. Therefore, if only a
transcript of the oral arguments could have formed part of the
judicial record, the inordinately large and unwieldy gap between the
‘actual’ time and the ‘effective’ time consumed by a case could be
drastically lessened, thereby leading this Hon'ble Court to dispose
off a larger number of pending cases within the same time and
infrastructural resources available to it, and with no change
whatsoever in the existing infrastructure. Assuredly, this is a matter
for the “Public Good”, and hence, any effort by this Hon'ble Court in
this direction would only be in execution of what is implicit in “Public
Policy”.
7
This case involves a challenge to the constitutionality of a state law that
introduced an amendment to the prevailing election law by limiting voting to
only those individuals who produced the prescribed identification.
8
Article 226 Cases: 25742 / Civil Cases (Appellate side): 16205 / Tax Matters:
4551 / Civil Miscellaneous Applications: 27653 / Criminal Cases: 13798 /
Criminal Miscellaneous Applications: 18514 / Arbitration and Allied Cases:
11354 / Execution Applications: 2843 / Interlocutory Applications: 18046
-22-
21. It is further submitted that the problem of arrears at the High Courts
has been most earnestly looked into by several reports prepared by
the Law Commission of India. The Law Commission of India, in its
One Hundred Twenty Fourth Report (1988) said this much:
9
Report of the High Court Arrears Committee 1949;
Law Commission of India, 14th Report on Reform of Judicial Administration
(1958)
Law Commission of India, 27th Report on Code of Civil Procedure, 1908 (1964)
Law Commission of India, 41st Report on Code of Criminal Procedure, 1898
(1969)
Law Commission of India, 54th Report on Code of Civil Procedure, 1908 (1973)
Law Commission of India, 58th Report on Structure and Jurisdiction of the
Higher Judiciary (1974)
Report of High Court Arrears Committee, 1972
Law Commission of India, 79th Report on Delay and Arrears in High Courts and
other Appellate Courts (1979)
Law Commission of India, 99th Report on Oral and Written Arguments in the
Higher Courts (1984)
Satish Chandra’s Committee Report, 1986
-23-
25. A case listed on any given day generally requires the Judges to
peruse the pleadings, and therefore, consumes considerable time
and attention of a judge. Once a listed matter is called for
arguments, in practice, a range of developments are possible.
Arguments may commence and not conclude by the end of the day’s
business. Unless the arguments are resumed on the next (or a near)
working day, the absence of a transcript burdens the participants at
the next hearing with the avoidable task of making assumptions
about the progress in the previous hearing(s), which assumptions
may considerably vary from the actual. An absence of transcript,
under such circumstances, results in an easily-avoidable wastage of
judicial time, energy and devotion14.
26. Further, given the increasing number of cases that are filed every
day in a High Court, every addition to the back-log deprives each
case of a resolution within a reasonable time. The Annual Report
published by this Hon’ble Court estimates that an average of 64
14
"…not infrequently oral argument develops a new issue overlooked or not
adequately briefed. This gives the Court an opportunity to instruct counsel to
prepare supplemental briefing during a specified period."
(Mosk,In Defense of Oral Argument (1999) 1 J. App.Prac. & Proc. 25,
27.
-26-
cases were placed for hearing before a Bench on every working day
during 2007-08. The said Report further estimates that the average
time available for the disposition of a case by a Bench is a mere 4
minutes and 55 seconds15. An absence of transcript enhances such
unreasonableness by further depriving every adjudication of a critical
resource. A judge’s time and attention is burdened with cases of
varying legal flavours, subject, skill and variety. It would be humanly
impossible for any individual to attain a degree of specialisation in
the diverse branches of law involved in cases brought before him. A
transcript represents an efficient mode of conveying the specifics of
a case to a judge.
16
Only cases with title beginning with A (Volume 2 – pages vii & viii & 1 to 21)
and reported in Supreme Court Cases (SCC) is extracted from a 4 volume
Book published by Lexis-Nexis India – Supreme Court Case Citator (2001-
2006)
-30-
17
On the question of whether a decision from a controlling jurisdiction is
‘directly adverse’ to a lawyer’s position, the prevailing view is that counsel
must cite adverse cases that are ostensibly controlling, even though the
lawyer reasonably believes that the decision is factually distinguishable or
that the Court will ultimately determine the decision is not controlling. See,
eg., Tyler v. State, 47 P.3d 1095 (Alaska Ct.App.2001) (extensive discussion of
authorities). See generally Floyd, Candor versus Advocacy: Court’s Use of
Sanctions To Enforce the Duty of Candor toward the Tribunal, 29
Ga.L.Rev.1035 (1995) (lawyer’s readiness to cite adverse authority will
increase due to Court’s expectation of citation and willingness to impose
sanctions for failure to do so); Gilmore, Self Inflicted Wounds: The Duty to
Disclose Damaging Legal Authority, 45 Clev.St.L.Rev.303 (1995); Lischkoff,
Recent Decisions on Citing Authorities to Courts: Model Rule 3.3(a)(3) of the
Model Rules of Professional Conduct, 19 J.Legal Prof. 315 (1994) (Court’s
narrow reading of Rule, and resulting failure of lawyers to disclose adverse
authority, results in waste of judicial resources and diminished confidence in
legal system) (pg.334)
Annotated Model Rules of Professional Conduct - By Center for
Professional Responsibility (American Bar Association) 2003 Edition
-31-
31. Every litigant has a right to counsel, and a derived right to evaluate
the effectiveness of his counsel18. Transcript of oral arguments
performs an invaluable task in this regard, and absence of a
transcript, especially in cases where the litigant could not, himself,
attend the hearing in person, renders a litigant unable to perform this
evaluation with any modicum of effectiveness
32. The Petitioner respectfully submits that there are several references
in news reports to instances where individuals who sought to
innocently record judicial proceedings in this Hon'ble Court were
apprehended outside the courtroom by security staff acting under
the administrative directions of Respondent No. 3 / 4 with threat of
‘criminal contempt’ under the Contempt of Courts Act, 1971. The
Petitioner most respectfully submits that these type of actions clearly
stem from a failure on the part of the Officers of this Hon’ble Court to
recognise that such actions breach no stated law or other statutes,
and very respectfully, amount to violations of law on their own part
insofar as trying to deny and/or restrict the liberty otherwise available
to persons in our country.
18
‘…Adequate pretrial investigation and preparation are a necessary
foundation for effective assistance at trial.’ Pg.124
‘It is vitally important that counsel engage in thorough going investigation and
preparation’ before the trial begins. If a defence lawyer does not investigate
the case and prepare for trial, a defendant will not have the aid of counsel in
any real sense (Powell v. Alabama, 1932). Adequate investigation entails
looking into all relevant factual aspects of the case – the facts that the
prosecution will use to prove guilt and the facts that will assist in refuting the
charges. It also involves thorough research of the pertinent legal principles
bearing upon resolution of the criminal accusation. Unless counsel has made
herself aware of all the apposite facts and law and devoted the time
necessary to prepare the witnesses, to formulate arguments and positions,
and to plan strategies, defense counsel cannot meaningfully advance the
defendant’s interests at trial or subject the prosecution’s case to the
adversarial testing contemplated by the Sixth Amendment. Put simply, solid
investigation and preparation are necessary foundations for active and full
participation in the adversarial trial process’. Pg.124
The Right to Assistance of Counsel : A Reference Guide to the United
States Constitution By James J. Tomkovicz (Greenwood Press, 2002)
-32-
the body of the Act itself between acts that constituted defiance of a
judicial order (which were defined in the Act as “civil contempt”), and
other acts intended to prejudice or interfere or tend to interfere with
the due course of judicial proceedings, and hence, a definition was
attempted to be given to “criminal contempt” in light of the preceding
description.
It was also at around that time that the Administration of Justice Act
of 1960 was passed in the UK. It is relevant to the present petition to
reproduce Section 12 of that Act, because even in the UK, accurate
reporting ceased to be a contemptuous act at least thereafter (if not
before) :
35. That what follows from the above is that the law of contempt in India
can be categorised into at least the following five distinct phases,
and which phases were categorized by the remarks placed
alongside phase :
From this, it follows that since common law is what evolved the
jurisprudence relating to contempt till 1925, and again, till 1952,
and also, from 1952 to 1961 (till which time jury trials were in
existence), case law relating to these three phases is of no
relevance today, partly because the principles of case law which
otherwise ruled the field only lent persuasive value once the Acts
of 1925 and 1952 had been enacted, equally because the
precedents under the Acts of 1925 and 1952 cannot be binding
-36-
37. The Petitioner further submits that unlike the situation prevailing
prior to 1925 (when contempt was covered by common law), it is the
Parliament of India that has enacted the ‘Contempt of Courts Act,
1971’.
This being the case, it is very respectfully siubmitted that can hardly
follow that when the law-maker (the Legislature) itself is protected by
a certain far-broader and superior provision of law (the Constitution),
but views certain acts as not being contemptuous of its own
authority or dignity by virtue of the standards laid down by that
Supreme Law (i.e. the Constitution), yet, a subordinate Act (the
Contempt of Courts Act of 1971) framed by it under the powers
vested in it under the Constitution is to be interpreted in such a
manner that the same acts which the Legislature does not view
under the Constitution as being contemptuous of its dignity and
authority may be viewed by Courts as being contemptuous of the
courts under the Contempt of Courts Act.
-38-
38. It is further submitted that the reference in certain cases from the
United Kingdom and the United States to a restraint upon the media
from recording Court proceedings is principally aimed at insulating
their jurors from biased reporting – concerns that, as stated above,
are inapplicable to India in view of the fact that jury trials have been
abolished in India since 1960, but more so because the fact-finders
-39-
in civil and criminal trials in India are qualified judges and not
ordinary members of the public.
If this proposition did not follow would then mean that the Presiding
Officers of the courts in the US and the UK are themselves in
criminal contempt of their own courts.
40. The Petitioner further submits that he does not seek, as a matter of
right, that the Court confer legitimacy to his audio-recording. The
Petitioner submits that the benefits of a Court transcript are not lost
merely because the transcript is derived in the absence of an official
-40-
42. The Petitioner has not approached this Hon’ble Court or any other
Court of law seeking the relief predicated on the instant cause of
action.
GROUNDS
19
8. The High Court, in this case, in its obvious zeal to cut delay and hardship
that may ensue by relegating the plaintiffs to one more round of litigation, has
rendered a judgment which violates several fundamental rules of civil
procedure. The rules breached are:
(i) No amount of evidence can be looked into, upon a plea which was
never put forward in the pleadings. A question which did arise from the
pleadings and which was not the subject matter of an issue, cannot be
decided by the Court.
(ii) A Court cannot make out a case not pleaded. The Court should
confine its decision to the question raised in pleadings. Nor can it grant
a relief which is not claimed and which does not flow from the facts
and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a
second appeal….
9. The object and purpose of pleadings and issues is to ensure that the
litigants come to trial with all issues clearly defined and to prevent cases
being expanded or grounds being shifted during trial. Its object is also to
ensure that each side is fully alive to the questions that are likely to be raised
or considered so that they may have an opportunity of placing the relevant
evidence appropriate to the issues before the Court for its consideration. This
Court has repeatedly held that the pleadings are meant to give to each side
intimation of the case of the other so that it may be met, to enable Courts to
determine what is really at issue between the parties, and to prevent any
deviation from the course which litigation on particular causes must take.
Bachhaj Nahar v. Nilima Mandal [AIR 2009 SC 1103 : 2008 (15) SCALE
158]
-42-
20
‘…It will not do to decide the same question one way between one set of
litigants and the opposite way between another. If a group of cases involves
the same point, the parties expect the same decision. It would be a gross
injustice to decide alternate cases on opposite principles. If a case was
decided against me yesterday when I was a defendant, I shall look for the
same judgment today if I am plaintiff. To decide differently would raise a
feeling of resentment and wrong in my breast; it would be an infringement,
material and moral, of my rights. Everyone fees the force of this sentiment
when two cases are the same. Adherence to precedent must then be the rule
rather than the exception if litigants are to have faith in the even-handed
administration of justice in the Courts….’ Pg.33-34
Benjamin Cardozo in his treatise, The Nature of the Judicial Process
(1921)
-43-
must again brief an incoming judge with the past progress in the
case.
VI. A judge’s interaction with the counsel and the counsel’s response
thereto constitutes a critical component of every judicial proceeding.
Because the words and statements comprising a written pleading
are mere inert representations and an interaction between a judge
and the counsel exposits the relative understanding, appreciation
and evaluation of a written pleading, a written pleading receives its
life only during a debate in a courtroom21. The recording of such a
debate, and an accurate representation of such debate, is an
inevitable requirement for delivery of justice22. A justice-delivery
mechanism devoid of such transcript is an unacceptable mode of
delivery in a modern age which has seen technology for audio-
recording of events rapidly advance for the past 70 years.
21
The evidence supporting this hypothesis is overwhelming. Almost 80
percent of all the justices’ questions refer to arguments that were not raised
in these briefs. For specific issues, over 70 percent of policy questions are
new, over 95 percent of questions about external actors are new, and almost
80 percent of all questions about institutional rules are new…(pg 126)
I turn first to the general (non-issue specific) results. In cases with no amicus
participation, only 20 percent of the Court’s total questions focus on
arguments initially discussed in the parties’ briefs. The remaining 80 percent
of the Court’s questions raise issues that were not addressed in the litigants’
written arguments…. (pg.53,54)
Oral Argument and Decision Making on the United States Supreme
Court (supra)
22
…However, the learned author referred to the decision in Sengupta Vs.
Holms, (2002) EWCA Civ 1104 at (38) and quoted the views of Laws L.J. where
the learned Judge held that central place is accorded to oral argument in our
common law adversarial system. The learned Judge further said that ...this I
think is important, because oral argument is perhaps the most powerful force
there is, in our legal process, to promote a change of mind by the judge. That
judges in fact change their minds under the influence of oral argument is not
an arcane feature of the system; it is at the center of it (See pages 396 and
397 of the book).
SRC Projects Pvt. Ltd v. Commissioner of Commercial Taxes Madras
High Court – Writ Appeals 893 of 2008 – 08-Sep-2008 (Division Bench)
-44-
range, and variety of subjects over which rights are disputed before
a Judge, it is simply impossible to expect a judge to satisfactorily
adjudicate upon a legal claim without subject-wise assistance from a
competent and learned counsel23. Any such assistance is generally
contained only – or predominantly - in the oral arguments. An
absence of transcript of the oral arguments, therefore, unreasonably
deprives the judicial proceeding of a very critical resource.
VIII. Because our Constitution declares in Article 141 that the law laid
down by the Supreme Court shall be binding on all Courts and
Tribunals in India, a litigant before this Court is entitled to insist that
this Court must enter a judgment for him as a matter of law by
reason of a precedent in his favour. Because the binding value of a
precedent is debated only – or predominantly - during oral
arguments, a recording of those arguments is essential in order to
deter either side from expounding an unacceptable and unfaithful
proposition from any precedent24. It is further submitted that in a
23
A Judge will often ask counsel: ‘Do any cases from this Court support your
position?’ Counsel should be careful to cite only those cases that support his
or her position and to avoid distorting the meaning of a precedent.
…Likewise, counsel should be familiar with his or her client’s business. Judges
may pose questions about how a product is made, how employees are hired,
or how a relevant calculation was made…
Counsel should be knowledgeable about what is and is not in the record in the
case, and should be familiar with the procedural history of the case. Judges
frequently ask counsel if particular matters are in the record. It is helpful if
counsel can provide the volume and page where the information is located.
Counsel should avoid making assertions about issues or facts not in the
record. If counsel is asked a question that will require reference to matters
not in the record, counsel should begin the answer by so stating and then
proceed to respond to the question, unless advised otherwise by the Judge.
Guide for Counsel Presenting Oral Argument to the Ninth District
Court of Appeals, United States
24
Section 29.11 Adverse Legal Authority: The duty to reveal adverse legal
authority set forth in Model Rule 3.3(a)(3) is long established. Indeed, this
paragraph is identical to DR 7-106(B)(1). The same terminology is adapted in
Restatement of the Law Governing Lawyers Sec.111(2). Revealing the fruits of
one’s own efforts in the law library goes against all instincts of legal
partisanship, may damage a client’s legal position, and extends a windfall to
less deligent opposing counsel. However, two arguments can be made in
support of Rule 3.3a(a)(3).
First, Courts must rely on counsel to supply most of the legal argument in
litigated cases. If a lawyer deliberately omits adverse authority, there is risk
that neither opposing counsel nor the Court will discover the governing law
-45-
IX. Because written pleadings do not delve extensively into the case-law
in support of the pleading, it is only to be expected that a discussion
about the precedential value of a judgment is explored during oral
arguments. Counsel have a duty to the Court to extensively study a
and an erroneous decision (that could have been avoided) will result. To be
sure, conscientious judges (particularly those with law clerks) often conduct
their own backup research, but that is an insufficient protection against error.
Second, it is often said that revealing adverse precedent or other authority
does not greatly damage the client-lawyer relationship, because the law does
not ‘belong’ to the client in the same way that factual information does.
Rule 3.3(a)(3) refers to ‘legal authority’, which should be understood to
include not only case law precedents, but also statutes, ordinance,
regulations, and administrative rulings. Indeed, the duty to reveal the latter
kinds of authority is of greater practical significance, precisely because they
are less likely to be discovered by the tribunal itself….(pg.29.16)
The Law of Lawyering Volume 2 By Geoffery C.Hazard, W.William
Hodes, John S.Dzienkowski 3rd Edition, v.2-2000
25
Subsection (a) (2): Failure to disclose legal authority known to be directly
adverse to client’s position
Rule 3.3(a)(2) (renumbered from 3.3.(a)(3) as a result of the 2002
amendments) requires a lawyer to disclose legal authority in the controlling
jurisdiction that is directly adverse to the client’s position, when opposing
counsel does not present such authority. See Massey v. Prince George’s
County 907 F.Supp.138 (D.Md.1995) (defense counsel deliberately failed to
disclose to Court, during summary judgment proceedings, unfavourable
controlling authority); In re Thonert, 733 N.E.2d 932 (Ind.2000) (defense
lawyer failed to inform Court of adverse decision of state’s highest Court in
virtually identical case in which lawyer served as counsel of record).
On the question of whether a decision from a controlling jurisdiction is
‘directly adverse’ to a lawyer’s position, the prevailing view is that counsel
must cite adverse cases that are ostensibly controlling, even though the
lawyer reasonably believes that the decision is factually distinguishable or
that the Court will ultimately determine the decision is not controlling. See,
eg., Tyler v. State, 47 P.3d 1095 (Alaska Ct.App.2001) (extensive discussion of
authorities). See generally Floyd, Candor versus Advocacy: Court’s Use of
Sanctions To Enforce the Duty of Candor toward the Tribunal, 29
Ga.L.Rev.1035 (1995) (lawyer’s readiness to cite adverse authority will
increase due to Court’s expectation of citation and willingness to impose
sanctions for failure to do so); Gilmore, Self Inflicted Wounds: The Duty to
Disclose Damaging Legal Authority, 45 Clev.St.L.Rev.303 (1995); Lischkoff,
Recent Decisions on Citing Authorities to Courts: Model Rule 3.3(a)(3) of the
Model Rules of Professional Conduct, 19 J.Legal Prof. 315 (1994) (Court’s
narrow reading of Rule, and resulting failure of lawyers to disclose adverse
authority, results in waste of judicial resources and diminished confidence in
legal system) (pg.334)
-46-
XIII. The relief sought by the petitioner does not insist upon any
participant to a judicial proceeding to alter his/her conduct in any
manner howsoever. That is, lawyers, arguing counsel, parties,
members of the public, Court officers, Presiding Judges, Judges,
other staff members of the judiciary are not required to conduct
Introduction to Pyschology: Gateways To Mind And Behaviour. 12th
Edition, 2008. Dennis Coon and John O Mitterer.
28
A lawyer must promptly convey important information about the client’s
matter. See, e.g., Shalant v. State Bar, 658 P.2d 737 (Cal.1983)… (pg. 53)
Annotated Model Rules of Professional Conduct - By Center for
Professional Responsibility (American Bar Association) 5th Edition,
2003.
-48-
XIV. The judgment and orders passed by a Court are always made in a
given case and the judicial power of a Court is no more than the
power to adjudicate upon concrete controversies brought before it
for adjudication. Accordingly, in the pursuit of its judicial power, this
Hon’ble Court is effectively under a duty to consent to an
arrangement that is bound to render the adjudication more timely
and efficient, as sought by the petitioner.
PRAYER
iii) issue any other order or direction in the interest of justice, equity
and in furtherance of or to secure any other objective or
purpose as this Hon’ble Court may deem fit and proper in the
circumstances of the case.
Through :
K.V.DHANANJAY & SHEKHAR DEVASA
ADVOCATES FOR THE PETITIONER
127 Old Lawyers Chambers, Supreme Court,
New Delhi 110 003
099 029 09390 / 98 684 64180
Vs.
UNION OF INDIA & ORS. ……RESPONDENTS
DEPONENT
VERIFICATION :
Verified at _______________ on this ___ day of __________ 2009,
that the contents of my aforegoing affidavit are true and correct to my
knowledge.
DEPONENT
-52-
IN
Between:
Deepak Khosla PETITIONER
And
Union of India And Ors. RESPONDENTS
To,
The Hon’ble Chief Justice and
His companion Judges of the
Hon’ble High Court at New Delhi.
Add : Project
5. consultancy, - Lumpsum Rs. 40,000
installation,
commissioning,
misc. hardware etc.
etc
3 GRAND TOTAL Rs. 1,00,000
.
The brochures of all these options are part of Appendix “H”, from
which this Hon'ble Court may be pleased to peruse the extreme
simplicity and versatility of the different choices of equipment
available, as well as the number of progressive Courts that are
already using these equipments.
PRAYER
In the alternative :
Allow the petitioner, at his own cost and risk, to equip any one
courtroom of this Hon'ble Court with the appropriate equipment and
software for audio-recording of proceedings, equipment to be
retained by this Hon'ble Court for the period of time it, as per its sole
discretion, deems fit, and to be used to audio-record his own
proceedings (and/or those of others, should this Hon'ble Court deem
it appropriate), whether free of charge, or subject to any reasonable
costs to be demanded and/or recovered by this Hon'ble Court.
Vs.
UNION OF INDIA & ORS. ……RESPONDENTS
DEPONENT
VERIFICATION :
Verified at _______________ on this ___ day of __________ 2009,
that the contents of my aforegoing affidavit are true and correct to my
knowledge.
DEPONENT
-60-
IN
Between:
Deepak Khosla PETITIONER
And
Union of India And Ors. RESPONDENTS
To,
The Hon’ble Chief Justice and
His companion Judges of the
Hon’ble High Court at New Delhi.
PRAYER
26-10-2009
NEW DELHI
Through :
K.V.DHANANJAY & SHEKHAR DEVASA
ADVOCATES FOR THE PETITIONER
127 Old Lawyers Chambers, Supreme Court,
New Delhi 110 003
099 029 09390 / 98 684 64180
-63-
Vs.
UNION OF INDIA & ORS. ……RESPONDENTS
DEPONENT
VERIFICATION :
Verified at _______________ on this ___ day of __________ 2009,
that the contents of my aforegoing affidavit are true and correct to my
knowledge.
DEPONENT
-64-
Vs.
INDEX
2 Urgent application. 2
.
1 Vakalatnama
7
.
Through :
K.V.DHANANJAY & SHEKHAR DEVASA
-66-