Era of Euthanazation of the Constitutional Rights and Liberty - Loss of Constitutional Right - "Confront the Accuser" - Evidence at Designated Places.

1. The right to fair and transparent trial, whether in civil or criminal case, is the principle of justice, fair-play.
2. The Constitution provides for freedoms, rights, and liberties under Articles 19, 21, 20, and 22. Of course, these rights are subject to the laws and can be taken away as per the procedure established by law. Needless to say, these laws have to be reasonable, non-arbitrary, and with intent to achieve some of the directive principles or national objectives or social objectives. To that extent, the state is a trustee of the entire country and society while using the legislative and executive functions and has to act in the benefit of the citizens.
3. In this article, I am to refer to the provisions of the newly amended, introduced criminal procedure under BNS i.e., recording of evidence via audio-video medium at 'Designated places'.
4. The law as it stands is that no witness should be tampered with, tutored, threatened, etc., or deterred from giving evidence before a Court of Law. The creation of audio-video 'designated centres' by the state, who is interested in the litigation and a party to the litigation, is naturally under the control of the state.
5. Thus, the possibility and probability of the state imposing its interest as a litigant are very high and beyond the reach of any judicial scrutiny.
6. A legislation creating the centres limits/excises judicial scrutiny and takes away the judicial function, going to the extent of telling the judiciary that it cannot function in a particular way.
7. This also interferes with the autonomy of the judiciary, if not the basic structure or pillar of the Constitution.
8. As several of my esteemed senior colleagues have observed, creating audio-video centres is improper. I am now focusing only on the aspect of constitutionality of such introductions—given the Constitutional Right of Fair Trial.
9. It is a matter of right for any person against whom any allegation is made to cross-examine and test the veracity, impeach the character of the adverse witness.
10. Not only is it a principle of natural justice, but it is also a natural human right, even under the Universal Declaration of Human Rights.
11. The IEA Evidence Act records such right in Section 146, now renumbered as Section 149 of BSA.
12. This right to confront the accuser has to be real and not a mere hollow formality.
13. By the introduction of audio-video recording centres, if the accuser witnesses are going to be beyond the witness box and can be easily prompted, threatened, lured, tutored—the question of 'right of confrontation' loses its entire meaning and becomes a farce. Therefore, whatever constitutional rights under Articles 19, 20, 21, and 22 would clearly be euthanized.
14. The entire cross-examination and confrontation of the witnesses would turn into a 'hollow show' of trial, when in reality, the "right to confront the accuser," which is according to me a major subset of the constitutional right to 'fair trial,' will be lost permanently.
15. A lawyer is duty-bound to protect the interest of the client. Now the lawyer will be helpless and would be doing stewardial/waiter service to the client, rendering no need for any lawyer. The conviction orders can also, if required, be cyclostyled. The only question is whether judges would be 'required' any further for the implementation under the new System of law, if not for a 'hollow show.'
16. One may wonder whether it would be better not to even have a trial and directly punish the accused.
17. We may now need to give up the principle that "No innocent person be punished."

For consideration of Esteemed Readers

Award Winning Article Is Written By: Mr.Sandeep Kapatkar, Advocate Pune

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