Maintain confidentiality of sensitive documents [Confidential]

While hearing an appeal under Section 19 of the Family Courts Act, 1984 which is directed against the order dated 5th June 2015 passed by the Principal Judge, Family Court, Saket, Division Bench of Honourable High Court of Delhi constituted by S. Muralidhar and I.S. Mehta JJ, dealt with a serious issue of infringement of Right to Privacy.

It was a case where the attorneys produced very sensitive documents such as personal diary of the children of the parties to this case. However, court was of the opinion that, contents of the document reflect inter alia the very private and personal feelings and opinions of a young child about his parents, sibling, friends and relatives. It is not something which should be casually placed in the public domain as it is bound to violate the right to privacy of not only the author of the ‘personal diary’ but others whose names and conduct find mention therein and is likely to affect the author’s relationships with them. Accordingly court issued following directions;

  1. Where a party in a case seeks to rely upon a document (sensitive documents) which in his or her assessment or the assessment of the party’s lawyer is of a sensitive nature, viz., which contains details of a personal or private nature concerning a party or a person or their conduct, which when disclosed is likely to affect the right to privacy, or cause embarrassment, then such party and/or the lawyer of such party will first apply to the Court seeking leave to produce such document in a sealed cover. Till such time that leave is granted the contents of the said document shall not be extracted in the pleadings or a copy of the whole or part thereof enclosed with the petition. For this purpose a document would include any writing, private letters, notings, photographs, and documents in electronic form including video clips, text messages, chat details, emails, printed copies thereof, CCTV footage
  2. Where upon a party applying under (i) above, or where any other party, or the Family Court on its own, comes across a document on record in the case which is prima facie of a sensitive nature, viz., which contains details of a personal or private nature concerning a party or a person or their conduct, which when disclosed is likely to affect the right to privacy, or cause embarrassment, the Family Court will pass appropriate orders concerning the said document including providing copies thereof to the parties, preserving the originals or copies as the case may be in a sealed cover, de-sealing for being produced during Court proceedings and re-sealing after the purpose for which they are directed to be produced is over.
  3. The Family Court will also bind down by specific directions, the parties and their respective lawyers, and the Court staff regarding the making of copies, use, preservation and dissemination of such document with a view to maintaining its confidentiality. The Family Court can also pass necessary directions to specify the conditions upon which access would be permitted to such document by third parties.
  4. The Family Court will endeavour to decide on the issues at (i) (ii) and (iii) above, without unnecessary delay, in accordance with law. The above directions are in the nature of broad guidelines and can be suitably modified and adapted/applied to a given situation by the Family Court. The Family Court will, however, at all times keep in view the requirements of protecting the rights to privacy and dignity of the parties and persons.
  5. The Family Court should as far as possible and practicable invoke the power under Section 11 of the Family Courts Act 1984 and hold the proceedings in camera. Where the circumstances so warrant, the Family Court may in the orders uploaded on the website or made available otherwise, suitably anonymize the names of the parties.

Court further made it clear that, unless there is a specific order of the Family Court, or where the party thinks it to be absolutely essential, or where suitable alternative arrangements are unable to be made, parties should avoid bringing children to the Family Court on a routine basis. Lawyers should also advise their clients in this regard since repeated visits to Courts to witness the legal contests between and among parents and relatives is not desirable or conducive for the healthy development of children.

Read the full judgment of X v. Z, MAT.APP.(F.C.) 78/2015, decided on June 11, 2015 (Delhi High Court)

Custodial Deaths and its Preventive Measures

Prachi Kumari, Student, Law School, BHU, Varanasi

As per Section 57 of the Code of Criminal Procedure, 1973, a police-officer cannot detain an accused person in custody for more than twenty four hours if he is arrested without warrant. Article 22 of the Constitution also mandates the arrested person to be produced before Magistrate within 24 hours.

In case, police-officer considers it necessary to detain such accused person for a longer period for the purpose of investigation, he can do so only after obtaining a special order of a magistrate under section 167 of the Cr.P.C. The object of these provisions is to enable the magistrate to keep check over the police-investigation and to protect the accused from unscrupulous police-officer.

Unfortunately, accused persons are not safe in police custody and are often found dead mysteriously despite these provisions. Following data reveals the story;

As per the data released by the National Crime Records Bureau, “There were 21 deaths in police custody of persons who were remanded to such custody by the Court during the year 2013. Magisterial enquiry was ordered / conducted in 11 of the reported incidents in 2013 and judicial enquiry was ordered/ conducted in 6 deaths during 2013.13 cases were registered against police personnel for such custodial deaths wherein no policeman was either charge-sheeted or convicted during the year ((National Crime Records Bureau, Crimes in India 2013, available at http://ncrb.gov.in/CD-CII2013/Chapters/13-Custodial%20Crimes.pdf)).”

Moreover, “There were 97 incidents of deaths in Police custody of persons who were not remanded to police custody by court 2013, showing an increase of 36.6% in 2013 over 2012. Majority of such incidents were reported in Maharashtra (34), Tamil Nadu (15), Uttar Pradesh (14) and Gujarat (13). These States together have accounted for 78.4% (76 out of 97 deaths) in country during 2013. Magisterial enquiry was ordered in 38 out of 97 such deaths reported and judicial enquiry was ordered in 30 incidents. A total of 48 cases were registered against police personnel wherein 1 policeman was charge-sheeted; however no policeman was convicted during the year 2013.”

Furthermore, “During the year 2013, in Karnataka 5 persons were arrested under custodial rape but due to want of evidence or other reason all 5 persons were released or freed before trial. However, Out of 4 under trial persons whose trials were completed during the year, all four persons was acquitted.”

This is, indeed, an alarming data as we see; most of the guilty policemen have been acquitted due to want of evidence. The Bombay High Court took note of abovementioned data and on 16 August 2014 ordered installation of CCTV cameras in Police Stations in order to collect evidence and prevent custodial deaths. The Division Bench comprising of V.M. Kanade, J. and P.D. Kode, J. directed that compliance report should be filed within four weeks. This data was referred by advocate Yugmohit Choudhary, who has been appointed as amicus curiae in all custodial death cases together.

I think installation of CCTV cameras is a good tool to collect evidence unless it is tampered. But, there are high chances of tampering with this recording. It is significant to note that the Bombay HC has made the senior police-inspector or in-charge of the police station responsible for ensuring that the CCTVs are operational. The police cannot be trusted to keep this recording safe in all the circumstances, since this footage may be used against police itself. Although, the footage goes in favour of police if it has been kind to the person in custody whose death has been caused by any other reason, it may go against police if it has been cruel to the person in custody. Therefore, something more should be added to make this tool tamper-proof. I have following suggestions:-

  • A district-level body should be constituted to monitor whether CCTV cameras are operational.
  • That body should consists of members who are either retired or working judicial officers and are persons of high moral character.
  • That body should be empowered to operate the control-room, and should manage live recording.
  • That body should be made responsible for preservation of recording.

Police is the machinery which controls crime. If crime takes place in police custody, then we must lean towards some other machinery to curb it. Therefore, I would suggest constitution of such body to monitor CCTV footage, which consists of members other than police officers.