Case Comment: R.K. Anand V. Registrar, Delhi High Court (2009) 8 SCC 106
Trisha Menon, Shiv Nadar University, School of Law
When NDTV broadcast hidden-camera footage in May 2007 showing senior defence advocate R.K. Anand and Special Public Prosecutor I.U. Khan apparently negotiating with a witness in the BMW hit-and-run trial, the Delhi High Court took suo motu cognizance and convicted both for criminal contempt. The Supreme Court affirmed Anand’s conviction while acquitting Khan. The result was defensible; the reasoning was not. This essay argues that the Court’s decision to treat contempt jurisdiction as a sphere in which the Indian Evidence Act, 1872 simply does not operate, and to assess the authenticity of the sting recordings through conduct-based inference and natural justice rather than through the authentication regime of Section 65B, subordinates evidentiary rigour to judicial convenience, conflates the standard of proof with the manner of proof, and creates a precedent whose consequences the Court did not fully reckon with.
The Evidentiary Challenge and the Court’s Foundational Move
The recordings before the Court were button-camera footage captured on microchips and reproduced on CDs. Anand’s senior counsel argued that the High Court had founded the conviction on electronic evidence without having its authenticity properly proved. The original microchips had been left with NDTV, a private entity with an obvious institutional interest in the proceedings. Sunil Kulkarni, the primary witness in the proceedings and the individual being negotiated with in the recordings, was never produced for cross-examination.
Counsel further contended that since contempt is quasi-criminal, the standard of proof required was the criminal standard, which had not been met on unauthenticated electronic evidence.
The Court’s response was a single sweeping proposition: that contempt jurisdiction is sui generis, and that “the provisions of the CrPC and the Evidence Act are not applicable to a proceeding of contempt”. In their place, the Court substituted the principles of natural justice:notice, access to transcripts, opportunity to respond, and open-court viewing of the footage. This foundational move is the source of the judgment’s primary doctrinal difficulty. It does not engage with Sections 65A and 65 B of the Indian Evidence Act, 1872, which govern the admissibility of electronic records. Section 65B (4) requires that secondary electronic evidence be accompanied by a certificate from a person in a responsible official position identifying the record, describing its production, and certifying that the statutory conditions are met. No such certificate was sought or required. The Court justified this by treating the Evidence Act as categorically inapplicable, a conclusion broader than the facts required and wider than the case needed to go.
