Delhi Lawyers vs LG’s Video Testimony Rule: How They Forced a Govt Retreat

Lawyers of district and lower courts in Delhi have succeeded in forcing the powerful Union Ministry of Home Affairs twice, within a year, to put on hold its ambitious plan of changing forever the very nature of how the police personnel will now depose in courts in criminal trials.The unusual Delhi Police statement on Thursday evening, announcing that the 13 August notification issued by the Lieutenant Governor of Delhi will be on hold till Home Minister Amit Shah meets the lawyers and arrives at a conclusion in the matter, came just a day before the protesting lawyers were to march to the LG's residence.The lawyers have now suspended their six-day old strike, pending talks with the Home Minister.Though the six-day strike was specifically by lawyers of lower courts, they received support from their colleagues in the Delhi High Court, Supreme Court.Even the regulator of legal profession in the country, the Bar Council of India, came out in support of their demand. 'Malafide Intent,' 'ECI Can't Decide Citizenship': Lawyers on Bihar SIR in SCStrikes by lawyers and its repercussions on litigants quest for justice getting further delayed, both are not uncommon for those familiar with the country’s legal system. So, what was different with the Delhi lower courts lawyers strike this time? The answer is that the issue was not local, neither was it confined to the national capital alone, nor was it about the lawyers welfare. The LG notification mentioned above and now on hold for the time being, was the only reason for the strike.If and when implemented, the move will change forever the centuries-old legal principle in criminal law of witnesses statements being recorded and their cross-examination being conducted when they are physically present in the court room in full public view.The lawyers view was that the strike was not about themselves, and the LG notification allowing police to depose through video-conferencing in court trials was a water-testing exercise. If not nipped in the bud, this diktat would bury fair trials and Delhi would merely be a trial balloon, soon this will be made a pan-India rule.The root cause stems from the three new criminal laws, which came into existence from 1 July, 2024. The strike specifically was against three provisions mentioned in the Bharatiya Nagarik Suraksha Sanhita (BNSS), which has replaced the Code of Criminal Procedure or CrPC 1973.Next question which could naturally arise is that since the three new criminal laws were implemented more than a year ago, why was the strike happening now and why only in Delhi?The notification in question which led to a storm within the lawyers fraternity was issued under the Bharatiya Nagarik Suraksha Sanhita, 2023, and was a continuation of an earlier notification which was issued in July last year.However, immediately after the notification matter became public last year—which would have allowed the police personnel to depose from their respective police stations through video conferencing in criminal trials, in place of the longstanding legal procedure of their physical appearance in the courts to give their statement and be cross-examined by the lawyer of the accused—Delhi lawyers had announced protests against the fundamental change in criminal trials.Rahul Gandhi, Patriotism & Supreme Court: Who Gets to Define Love for India?The lawyers argument is that in a criminal trial, the evidence of the police which registers the case and investigates is a central focal point of the trial. Court proceedings via video conferencing will seriously jeopardise a fair trial since the individual can be sitting at a far-off place during the court proceedings, while the others, including the judge, will be physically present in the court and will therefore not have a fair chance to judge the veracity and credibility of witness’s statement and cross-examination. The then-Union Home Secretary, Ajay Bhalla, had written to the Delhi Chief Secretary on 15 July 2024 to put on hold “the notification to be issued by the state government related to designated place for examination of witnesses through audio visual electronic means as mandated under the BNSS 2023. In this regard, it is clarified that the police stations may not be designated as places for examination of witnesses through audio visual means.” This communication had its desired effect, since it had helped in momentarily calming down the agitated lawyers and it was business as usual for that period.However, barely a year later in August this year, the Delhi LG issued the notification which amended the designated place for witness deposition and cross-examination of police personnel to police stations in place of court rooms. With this change (now on hold for the moment), all police stations in Delhi were to be formally declared as “designated places” for the deposition of police officers. This includes 179 territorial stations, as well as units of the Railways (eight), Metro (16), Cyber (15), Crime (two), Special Cell (one), IGI Airport (two), Economic Offences Wing (one), Crimes Against Women (one), and Vigilance (one).This was meant to allow police officers to give testimony from their respective stations through video conferencing, rather than appearing physically in court. The second provison to Section 265(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, provides that the examination of a witness may be conducted through audio-video electronic means, but only at a designated place to be notified by the state government.Further, Section 308 of the BNSS, 2023 mandates that all evidence in a trial or proceeding must be recorded in the presence of the accused or, if the accused’s personal attendance is dispensed with, in the presence of their legal representative.The LG's notification had made it clear that “the amendment came into force with immediate effect", which effectively meant that the Home Secretary’s assurance to lawyers was now a thing of the past and this led to the immediate strike in all lower courts across Delhi.The argument by the lawyers that found widespread resonance was that the notification was against the basic tenets of justice and would lead to the demise of the longstanding legal principle of free and fair trial.The Supreme Court Bar Association used strong words to condemn the Delhi LG notification, saying the move was “arbitrary, unlawful, and against the principles of natural justice". The Association warned that the measure not only undermines the sanctity of judicial proceedings, but also compromises the fairness of the process.With the notification now on hold, it remains to be seen whether it is a temporary truce which would hold for sometime, or if the matter will flare up soon again. A possible conclusion can only be possible if this contentious provision reaches the Supreme Court and it rules on the Constitutional validity, or otherwise, of the provision. (The author is a former BBC and Hindustan Times journalist, who has covered judiciary related matters for a long time. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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Delhi’s Lawyers Strike Wasn’t About Lawyers. It Was About Fair Trials

As per the lawyers, the notification would lead to the demise of the longstanding legal principle of fair trial.

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Topics: Delhi Police LG Lawyers