Advocate and serial writ petitioner Deepak Khosla has audio recorded five minutes of his appearance before the Company Law Board on 25 February, arguing with the presiding member about why he should turn his dictaphone off.

[Click play button on the left for subtitled video, scroll down for text transcript, or click here to view full recording on YouTube]

The five-minute-13-second audio clip, which was first published by Bar & Bench, documents Khosla trying to convince CLB member BSV Prakash Kumar to allow his continuing to record the proceedings, claiming that a new CLB rule prohibiting audio recording has not yet been gazetted and was therefore not binding.

After Kumar threatened Khosla with postponing the hearing or with taking “action”, Khosla turned off his device. After Khosla switched off the recording device, Kumar sat down again and the hearing proceeded.

Khosla, who has fought a long-running battle to get audio recording introduced in the courts, amongst many other causes, told Legally India via email that the debate was “the so-called 'last frontier' in civilised jurisprudence”.

[Read Legally India profile of Deepak Khosla from 2013]

“My stand is simple,” he said, “natural justice requires that there needs to be an objective, fair, holistic, and indisputable record of  what transpires in a Court, a record that cannot be subject to the variegated mood, whim or caprice of the Presiding Officer in dictating a highly truncated order,” Khosla explained, having been aggrieved by the orders of Kumar in the past. Khosla claimed that Kumar's orders did not fairly represent Khosla's arguments in court. 

“Hence, not having confidence in his fairness in agreeing as to what is vital to include in the order and what is not, I wished to record the proceedings before him with my own digital recorder, by burning a CD at the immediate close of the hearing, to be kept in sealed cover with the Court Master, signed by all parties, to serve as a reference (to pre-empt tampering). Therefore, with intent do so, and citing the Hon'ble Delhi High Court’s written confirmation given to me under the RTI Act to the effect that there is no Rule that prohibits recording, I asked that if CLB intends to seek me to not record, to advise me of the rule which empowers them to do so.”

Having notified the CLB of his intent to record proceedings on 25 February, Khosla claimed that “to pre-empt my recording on 25-02-2014, they rushed through this Company Regulation No. 51 that very day [...] literally in two days flat, which purports to project that one cannot record CLB’s proceedings”.

The CLB order dated 20 February states that “there shall be no audio or video recording of the Bench proceeding by the parties” (see image left).

Khosla told Legally India:

“Firstly, its issuance on 25-02-2014 only underscores the fact that previously, you could record, which is / was exactly my point. Secondly, even now, even after its issuance, you can record, because, firstly, it has still not been Gazetted, secondly, it has been issued without jurisdiction to do so. The latter is because the power to frame a Regulation has been conferred by Section 10-E(6) of the Companies Act of 1956 upon the “Board of Company Law Administration” (meaning, the Chairman + Vice Chairman + all the Members i.e. the entire Board, acting collectively) and not upon Hon’ble Chairman.  This is what Section 10-E-6 of the Companies Act, 1956 says:

10(E)(6) : Subject to the foregoing provisions of this section, the Company Law Board shall have power to regulate its own procedure].

Hence, as this Company regulation is a “nullity” in law, void ab initio as if non est, I intend to continue recording, unless they prove me with a lawfully-issued Rule which precludes my doing so.

Khosla said that the order also went counter to law minister Kapil Sibal’s announcement last year that court proceedings should be recorded.

Transcript of the audio recording:

Deepak Khosla: Your honour, with permission, this is a recording device, if your honour would kindly permit that....

CLB member Kumar: No no no no, the rules ... you're not supposed to do anything.

Yes, may I see the rule your honour?

You're not supposed to do anything.

Not do anything mean?

You're not supposed to record anything.

May I see the rule your honour?

... [shuffling papers]

Your honour, but I believe it's not been gazetted so far, so until it's gazetted.

You're not permitted to do anything. No rule traditionally (?) is there permitting you to record any...

Now rule has come prohibiting anybody to record anything, ok?

But your honour, as a judicial officer, your honour would surely be aware that a law would only come into effect when it's gazetted.

Only one thing I'm telling you is you're not supposed to do it.

Nono, I'm willing your honour, i have no difficulty if I just know the provision of law. That's why i have been writing to the company law board, kindly see these letters, I brought a copy.

If today's date is given for hearing the application ...

That's right, but you see, I have difficulty with the score, because your honour will either distort what I say or not include in the order what I say, so if your honour will see the honourable chairman's order

Only thing is if you have no confidence in this bench, only thing is if you are [...] only thing is you have to file an appeal.

An appeal of what your honour?

Whatever are [...] by honourable chairman. If you feel you are aggrieved [...] if you don't have any confidence in this bench, please ask the competent authority to give

With the utmost of respect, it's not a problem of confidence.

If there was a problem of confidence, honourable chairman I think in the order of 10th of January has asked me whether I have any reservation appearing before this board, before the honourable member, and I said that no, as long as my submissions are fairly recorded.

But you see, what is...

Have you put it on?

It is on, I'll switch it off if your honour shows me the provision of law.

Nono, you're not supposed to do it.

Just tell me the provision of law, your honour, I will switch it off, no difficulty.

You're not supposed to record anything, that's what I mean.

Your honour, I respectfully submit please inform - you see, today you are quoting regulation 51...

If you want to make submission make submissions after putting it off.

So can your honour inform me of any provision of law? There is no provision of law that your honour is aware?

There is no provision of law for recording anything.

There is no provision for breathing also. There is no provision that so many things.

If you want to argue your application, argue.

No no, I'm willing your honour.

Put if off.

So your honour will faithfully record whatever I submit if I urge this court that to please include in the order some submission that I've made, I hope that will not be refused to me.

See gentleman, it is not the way in which to make submissions like this. If you have any confidence, make submission, otherwise file an application to transfer proceedings to another bench.

Your honour, I have the confidence, all I'm saying is if you do not include in the order some submission that I've made...

You are not supposed to record anything here! (raised voice)

I'll switch it off, but I'll switch it off not because you are directing me to but because I'm choosing to.

If you don't do it, then I'll take action.

Under what provision of law?

I don't need to explain all these things to you.

I'm entitled--

I don't need to explain all these things to you. You're not supposed to do it, don't do it.

I'll stop your honour, I'm only saying that for any matter, any law to be enforced in the nature of a prohibition, the law needs to include the penalty for breach. So your honour may tell me, what is the provision of law and I have no difficulty. If there is a law, why should I breach the law?

See gentleman, you are breaching the law, you are not supposed to do all these things.

Your honour, I respectfully reiterate for the eighth time ...

I am asking, if you want to argue the matter, argue.

I certainly want to argue.

Yes yes, argue, otherwise I'll put the matter some other day.

Nono, I want to...

What the [chairman?] is saying, is insisting upon this bench to record the proceedings of this ...

No no, I'm not insisting your honour, I'm not insisting. Please, this is exactly the problem of appearing here [raised voice]. I am saying please inform me the provision of law.

I don't want to hear, if you behave like this [recording ends]