Video recording the court proceedings, an Offence? Mathews J. Nedumpara.
19th September 2019
Nullum crimen sine lege, nulla poena sine lege is a Latin maxim that means “no crime or punishment without a law.” There can be no crime committed, and no punishment meted out, without a violation of penal law as it existed at the time. This basic legal principle has been incorporated into international criminal law. This is also one of the fundamental principles of law which is incorporated in Part III of the Constitution. In simple words, no person can be proceeded against and punished unless the legislature had made a specific act as an offence and has expressly provided punishment therefor. Nothing is an offence unless the act alleged to be an offence finds incorporated in the Indian Penal Code (IPC) or any other legislation. The Contempt of Courts Act, 1971 is one enactment outside the general law, namely, the IPC, defining an offence and providing for punishment. Section 2(c) of the said Act defines criminal contempt thus:
(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”
Sections 12 of the said Act provides for the manner in which such an offence has to be tried, punishment and imposed.
2. The allegation against Dr. Vikram Deshmukh, as could be found in the order dated 11th September, 2019 passed by Shri Justice Ravindra V. Ghuge of the Aurangabad Bench of the Bombay High Court, is that he, Dr. Deshmukh, who was present in the Court during the course of the hearing of a petition instituted by his wife, recorded in his mobile the proceedings of the Court. The order further states that the Clerk/Sheristedar of the Court came to notice the same and he, even without waiting for any order of the Court, seized the mobile and handed it over to the Court. The Court thereupon asked Dr. Deshmukh to open his mobile and saw what was recorded and thereafter handed over the mobile to the lawyers on both sides and they too saw what was recorded in it. The order further states that Dr. Deshmukh admitted that he recorded the proceedings of the Court and he being told that he has the choice to opt for either 7 days’ imprisonment or pay a fine of Rs.1 lakh, without any charge, without any trial and for what offence he is being punished, frightened, Dr. Deshmukh pleaded guilty, profusely apologized to the Court and offered to pay Rs.50,000/- as penalty. His mobile was confiscated; so too his Aadhar Card, nobody knows under what provision, and the case was adjourned to 30th August, 2019 for depositing the penalty.
3. The above order came to be widely circulated in social media and various NLC groups. Literally, I had to face an avalanche of calls from lawyers, litigant public and common man for my/NLC’s response, probably because I have been pursuing the cause of video-recording of proceedings of all Courts and Tribunals in the country, including the Supreme Court, and access thereto to the litigants. I am not much concerned about live telecast of the same, though certainly I am not against it. It were the celebrity lawyers who appear in sensational cases who are keen in the live telecast.
4. Having asked my opinion on the subject, I must say that nothing could have been more painful, nay, heart breaking than the aforesaid order of the Aurangabad Bench of the Bombay High Court. In my opinion, Dr. Deshmukh did not commit any crime because there does not exist any law which makes what he did, namely, recording of the proceedings of the Court on his mobile, an offence. Equally, there is also no law which provides for any punishment for such an act. He has been convicted and sentenced for something which constitutes no offence and punished for which there exists no law.
5. While I refuse to endorse individual litigants resorting to recording the proceedings of their case without prior permission of the Court, I beg to submit that litigants are forced to do so because of a growing fear amongst the litigants that what actually transpires in the court is seldom recorded in the orders, and also since the judgment of the Supreme Court in Swapnil Tripathi v. Supreme Court of India, AIR 2018 SC 4806, held that freedom of speech and expression under Article 19(1)(d) of the Constitution takes within its ambit the right to have the proceedings of all Courts and Tribunals video-recorded and access to the same, except those proceedings which are required to be conducted in-camera. Suffice to say, my sympathies are always with Dr. Deshmukh who, I believe, has been convicted and sentenced for an offence unknown to the law of the land.
19 September, 2019.
Mathews J. Nedumpara
Ram, Jesus, Mohammed and Ambedkar do not require a prefix. It amount to no disrespect. On the contrary, to call Ambedkar as Dr. Ambedkar may be not doing full justice to his stature. Like manner to prefix Supreme Court as Honorable Supreme Court is no honour to the Supreme Court. High Courts can be prefixed as Honorable High Court but not the Supreme Court. The American Supreme Court is only the Supreme Court of America, so too other Supreme Courts. We only prefix the Supreme Court as the Honorable Supreme Court. I was accused of not paying due respect to Fali Nariman because I did not add the prefix Mr. I was sadly misunderstood. In avoiding the prefix I was only giving Fali Nariman the greatest of esteem and respect.
Mathews J Nedumpara
Mathews J Nedumpara