Wednesday, August 12, 2009

The R.K. Anand Case: Issues for Discussion

The group of students presenting the R.K.Anand case have identified the following issues for discussion:


I. Trial by Media and Sting Operations:
In this case, the media has essentially caused 3 things to occur:
First, the initiation of proceedings against RK Anand, IU Khan and others.
Second, possibly influenced the judges while hearing the same case
Third, made these tapes available to the Court in these proceedings.

Key questions which need to be discussed in this context are as follows:

1. Whether it was appropriate for the media to air the tapes during court proceedings of the BMW case? Does this adversely affect or prejudice the parties involved? At a broader level, does this vitiate fair trial?
2. Who decides what is “public interest” and at what stage? Would it have not served “public interest” if NDTV had turned in the tapes to the judges (since any way, the High Court can take suo moto notice of contempt cases) instead of airing them?
3. Was NDTV under an obligation to delay or not air at all the tapes in view of Sunil Kulkarni’s reluctance to get them aired?
4. Does such publication on Television influence the judges who are hearing the same case? Is this evident in this judgment given Alam J.’s comments in parantheses splintered throughout the judgement? [Eg: Paragraphs 24 and 78].
5. At a broader level, do sting operations invade the right to privacy of people and is this justified, keeping in mind the recent faux pas like the one in the Uma Khurana case?
6. The larger question is whether India needs laws on sting operations keeping in mind the issues aforementioned and existing provisions in other countries? What should the sanction be, if any, for non-compliance?

II. On Contempt of Court

Is it justified to have a lower standard of proof in a contempt of court proceeding vis-à-vis a criminal trial? For instance, R.K. Anand was not allowed to cross examine the NDTV reporter, Poonam Aggarwal, who was in charge of the sting operation. The issue which arises here is whether concerns of expediency should be given a priority over those of fairness.

IU Khan was let off by the SC while the HC had previously convicted on the same evidence. Was the SC correct in doing this? In this context, how does one determine the nature and degree of punishment in contempt of court cases?

Is there a difference in the punishment meted out to lawyers vis-à-vis other parties in contempt of court cases?

What weightage should be accorded to electronic evidence in convicting a person?

III. On Recusal
1. What constitutes “conflict of interest”?
2. What should the standard be in light of the increasing trend of advocates’ attempts to “fix” benches?
3. Was the Supreme Court justified in criticising Sarin J.’s lengthy defence for not recusing himself? Is such a “defence” necessary?

IV. Miscellaneous
In the judgment it is mentioned that Sanjeev Nanda refused to take part in the Test Identification Parade. Does the right against self incrimination extend to the right to refuse to take part in a TIP?

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