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TABLE OF CONTENTS
S.No 1. Content Acknowledgement Page No. 3
2. 3. 4. 5. 6 7 8 9 10 11 12
Methodology List of cases preface Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Newspaper Reports Bibliography
ACKNOWLEDGEMENT
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It is indeed my proud privilege to express my deep sense to our of gratitude and indebtness respected teacher
Professor Dr. Nuzhat Parveen Khan, for her inspirational guidance at every stage of my study, and further for her scholarly inspiration my research. and affectionate encouragement throughout the period of
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METHODOLOGY
This assignment for Clinical Course-IV, on the topic Contempt Of Court, has been compiled after a methodical and comprehensive subject . substance news The research Doctrinal books, on method the of
research used for the study includes from journals, daily articles, and reports. I have also used articles from and leading press newspapers, reports
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LIST OF CASES
AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449. Amrita Bazar Patrika case 45 Cal 160 Attorney-General v Times Newspapers Ltd (1973) 3 All ER 54 Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4SCC 406 Dulal Chandra v. Sukumar AIR 1958 Cal. 474 Home Office v. Harman [1983] 1 AC 280, 310; [1982] 1 All. ER 532, 542 , HL. Isbill v. Stovall, Rex. CIV.App.92 S.W.UD. 1057. King v. Almon 97 E.R 94 King v. Clements106 E.R 918 Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005). Re OSullivan; Ex parte OSullivan v Commonwealth Bank of Australia (1995) 129 ALR 295. Re, Shortridge, 99 Cal 526, 34, p.227 Supreme Court Bar Association V. Union of India, (1998) 4SCC 409; SurendraNath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal I.L.R 10 Cal. 109 United States v. Rylander, 460 U.S. 752 (1983)
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Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men..................Lord Atkin
Judges are priests in the temple of justice as observed by Ranold Dworkin in Laws Empire. Whereas we would say lawyers are worshippers of goddess of justice in the temple. Worshippers through the medium of priests have to reach the goddess of justice. For the same, both are necessary and in absence of one, another is incomplete. Hence, lawyers and judges have to co-ordinate, co-operate and collectively work towards the delivery of justice. Bench and bar need to harmonise and balance their functioning to achieve the sacred goal, i.e justice. However, situation might arise when both could be pitted against each other, i.e a situation of bench versus bar and the conduct of these worshippers (lawyers) then, while pressing their views on the bench may amount to Contempt of court. The topic of Contempt of Court often comes up for discussion and comment. Some talk of reforming the Law of Contempt, others suggest abolishing this power in Courts altogether, etc. The attempt in this project is to give the subject a new look by going into the Fundamental Principles. The basic principle in a democracy is that the people are
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2007 CriLJ/16 XII Justice Markandey Katju, Judge, Supreme Court of India
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CHAPTER- I
Origin and Evolution of the Law of Contempt
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Introduction
Contempt of court is a broad, common law doctrine. It was described by Joseph Moscovitz, as the Proteus2 of the legal world, assuming an almost infinite diversity of forms. 3The law of contempt is essentially concerned with interference with the administration of justice. It was clearly defined by Lord Diplock in a relatively modern case in the following words: Although criminal contempt of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.4
The law of contempt of court is of fundamental contemporary importance though it is of ancient origincontemptus curiae has been a recognised phrase in english law since the twelfth century. Contempt power first originated in the United Kingdom and has been largely developed at common law. Superior courts of record have inherent powers of punishing for contempt whether committed inside or outside the court. Inferior courts may be conferred power by statute to punish for contempt committed ex facie.5
2 3
A mythological sea god capable of changing shape at will. J. Moskovitz, Contempt of Injunctions, Civil and Criminal (1943) 43 Col. LR 780. 4 AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449.
5
Justice V.R Krishna Iyer; Contempt of Court; 6th Edn. Eastern Book Company, Lucknow
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If the
10
contempt is confessed there was no need for trial by jury and such cases of contempt were disposed off by sentence upon confession.
6 7
The earlier form of procedure was attachment by bill, when trial by jury
Supra 2 See Oswald, Contempt of court 1 (1910). This early origin of the contempt law has been acknowledged by Encyclopedia Britannica (Vol.6-p. 414, 3rd Edn.) and also by Joseph H Beale in his article Contempt of Court, Criminal and Civil 21 Harv. L.R 161 (1908) 8 John Charles Fox The nature of Contempt of Court 37 L.Q.R., 191, 194 (1921) 9 Ibid at 198. 10 Ibid at 199.
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From 14th century onwards the jurisdiction of the Kings justice to punish contempt of a criminal nature summarily was limited to the offences not heinous, committed in court in actual view of the justices. The summary jurisdiction was held to extend to all contempts whether committed in or outside the court.12 By 16th century, contempt committed out of court was punished by common law, only after trial in ordinary courts and not by any summary process.
13
information or by attachment and examination in the common law courts. This practice continued through 18th century and the procedure by attachment and examination were confirmed by the opinion of Chief Justice Wilmot in King v. Almon14 and finally established as law by Justice Holrayed in King v. Clements15. In the year 1888 Libel Act was passed and it permitted fair and accurate reports of judicial proceedings. But contempt proceedings were followed against erring publishers.16 Provisions regarding contemptuous publication have been re-enacted in a modified form in section 3 of contempt of court act, 1981. The County Courts Act of 1959 provided for punishment to any person who willfully insulted the judge of the county court., jurors, witnesses or any officer of the court, including courts other than courts of record. In England as well as in Scotland contempt came to be identified with summary procedure.
11 12
Ibid John Charles Fox The summary process to punish contempt 25 L.Q.R 238, 252 (1909). 13 See John Charles Fox Supra n. 4 14 97 E.R 94 15 106 E.R 918 16 R v. Parke (1900-3) All E.R 721
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Report of the committee on Contempt of Court, 4 (1963) II Vestiges of Old Madras 1640-1800, 241-242(Charter of 1727, 249) 19 Id. at 439-440 (charter of 1753, 253)
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24 25
Report of the committee on contempt of court, 48 (1974) (1742) 2 Atk. 469 26 See e.g. Black's Law Dictionary, 4th Ed. p. 390 (West's 1968)
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decree, direction, order, writ, or other process of a court or wilful breach of an undertaking given to a court; criminal contempt means the publication(whether by words, spoken or written or by signs or by visible representations or otherwise) of any matter or the doing of any other act, whatsoever which(i) (ii) (iii) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. The aforesaid definition may be subject to criticism as a legislative encroachment on the judicial power to demarcate what exactly is contempt of the court in a given set or circumstances. It is however apposite to refer the oft-quoted Lord Hardwicks three fold classification of contempt28 which is: Scandalizing the Court itself. Abusing parties who are concerned in the causes, in the presence of court. Prejudicing the public against persons before the cause is heard.
28
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Colorado law defines contempt as one of the following actions that have the general effect of disobedience or disrespect for a court or an order of the court:29 Disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; Behavior that obstructs the administration of justice; Disobedience or resistance by any person to, or interference with, any lawful writ, process, or order of the court; or Any other act or omission designated as contempt by statute. In American Jurisprudence30 it has been pointed out that generally speaking. He whose conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation31 or otherwise tends to impede, embarrass or obstruct the court in the discharge of its duties, is guilty of contempt.32
The root principal behind Contempt of Court is that the foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining the jury, the judge and the hangman and it is so because the court is not
29 30
C.R.C.P. 107(a)(1) 2nd Edn., Vol 17 p.6, S.3 31 Ex parte Earman, 85 Fla 297 31 32 Re, Shortridge, 99 Cal 526, 34, p.227
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performance of duties of judges office or judicial process or administration of justice or leads to generation of tendency of bringing
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See: In re Terry, 128 U. S. 289 (9 SC 77, 32 LE 405) (1888); Offutt v. United States, 348 U. S. 11 (75 SC 11, 99 LE 11) (1954). 34 MeDaniel v. State, 202 Ga. 409 (414 SE2d 536) (1992), quoting Moody v. State, 13 1 Ga. App. 355, 359 (2) (206 SE2d 79) (1974). 35 In re Shafer, 216 Ga. App. 725,726 (455 SE2d 421) (1995). 36 International Union v. Bagwell, supra; Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005).
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Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) [1983] 1 AC 280, 310; [1982] 1 All. ER 532, 542 , HL.
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Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985) AIR 1958 Cal. 474
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the court
to
disobedience of the order and conducts himself in a manner, which with the course of justice, the contempt between him and the court of the state as committed is of a mixed nature, partaking as between him and the
Constitutional guarantee of freedom of speech and expression does not permit either the individual or the press to commit contempt of court. The purpose of the contempt jurisdiction is to safeguard the administration of justice from undue interference and verbal attacks from any agency. The judiciary though competent to use the contempt power used it only sparingly.43 It cannot as a rule be too sensitive. Free and fair criticism of the judicial act motivated by bona fide reasons has to be permitted, but scurrilous attack on the judiciary motivated by mala fides has to be viewed seriously and should be restricted. Before
41 42
Section 228 Sections 480-487 43 N.G.Shelat, Contempt of Court, XII Gujarat Law Reporter (Jnl.) XIII (1972)
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Contempt of
It is a contempt of court to put improper pressure on a party to court proceedings. In Attorney-General v Times Newspapers Ltd (1973) 3 All ER 54, the House of Lords was considering a newspaper article relating to legal proceedings then on foot against manufacturers of the drug
44 45
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held that it was a contempt of court to use improper pressure to induce a litigant to settle a case; was divided as to whether the criticism in the article amounted to improper pressure or was fair and temperate.
was concerned with the Age tapes, not with the criminal proceedings; made statements which the NSW Court of Appeal held to imply that the accused person was guilty; was held by that Court to be a contempt of court.
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The High Court of Australia has stated that the conduct of a Royal Commission would constitute a contempt of court if it actually interfered with the administration of justice or had a real and definite tendency to do so: Victoria v BLF
48
Factors which a court will take into account in deciding whether the conduct of an inquiry constitutes contempt of related court proceedings include:
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Whether the court proceedings are civil or criminal As is to be expected, a court will be especially vigilant to protect the integrity of criminal proceedings.
Whether the facts in the court proceedings will be determined by a judge or by a jury A court will be concerned at the prospect of a jury being influenced by a related inquiry but will generally regard a judge as not being capable of being so influenced.
The extent to which the inquiry is examining matters covered by the court proceedings If the inquiry avoids considering, or receiving evidence relating to, the guilt or innocence of the party in the court proceedings, the inquiry is far less likely to be held to be in contempt of court.
Whether the inquiry is being held in public or in private Obviously, if an inquiry being held in private, the potential for a jury to be influenced by its proceedings is remote.
Does the inquiry have compulsory evidence gathering powers An inquiry which was exercising a power to compel a person to disclose information or documents relevant to that persons case in court proceedings might be held to be in contempt of court, especially where the information or documents were prejudicial to that persons case in the court proceedings.
The extent to which the particular proposed conduct by the inquiry is authorised by statute The more detailed the statute establishing the inquiry, the less likely it is that the inquirys conduct pursuant to that statute would be a contempt of court.
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the court may grant leave for the proposed use or disclosure, or the person from whom the information was obtained may consent to the use or disclosure;
the undertaking ceases upon the information being admitted into evidence in open court.
Eg. Eltran Pty Ltd v Westpac Banking Corporation (1990) 98 ALR 141; Sentry Corporation v Peat Marwick Mitchell & Co (1990) 24 FCR 463. It has been held that the implied undertaking exists in relation to information obtained by compulsory process in the Administrative Appeals Tribunal: Otter Gold Mines Ltd v McDonald(1997) 147 ALR 322.
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generally be a contempt of court. Otherwise, attacks on a judges personal reputation will be left for determination under the law of defamation, unless the attacks also undermine the administration of justice.
Destruction of documents
It can be a contempt of court to destroy documents likely to be required for court proceedings, even if:
no subpoena has yet been issued for their production; the documents were not essential for the proceedings.
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the objection that the Judge deals with the contemner has little opportunity
himself, there is a residue of cases where not only it is with certain offenders. This procedure does not offend in sua the Judge
ustifiable to punish on the spot but it is the only realistic way of against the principle of natural justice, viz., Nemo judex causa since the prosecution is not aimed at protecting personally but threat of protecting the administration
of justice. The
immediate punishment is the most effective deterrent The Judge has to remain in full control of the
hearing of the case and he must be able to take steps to restore as early and quickly as possible, The time factor is crucial. out the contempt proceedings means a lengthy Dragging
interruption to the main proceedings which paralyses the court for a time and indirectly justice is impede the speed and efficiency with which administered. Instant justice can never be completely in
satisfactory yet it does provide the simplest, most effective and least unsatisfactory method of dealing with disruptive conduct Court. So long as the contemner's interests are safeguarded by giving him an opportunity of being heard adequately in his
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the need for the brevi manu procedure said: the principle deducible from these cases is that the punishment is inflicted for attacks of this character upon judges not with a view to protect the court from a repetition of the attack, but with a view to protect the public from the mischief they will incur if the authority of the tribunal be undermined and impaired. In the 1971 Act the provision in Section 14 retains the summary procedure in cases of ex-facie contempt. In the matter of what is termed constructive contempt i.e contempt as to acts or writings outside the court which is brought later to the notice of the court teh procedure is entirely different (vide sections 17 and 18 of the 1971 Act). It must be remembered that only courts of record can claim such summary powers. These summary powers of the Supreme Court and the High courts as courts of record are in no way effected by or limited by the procedure set out in sections 14, 15, 17 an d18 of the 1971 Act. These court of record do, even after the passing of the 1971 Act, have their inherent and long established powers to deal summarily in matters of contempt.
52 53
53
45 Cal 160 Supreme Court Bar Association V. Union of India, (1998) 4SCC 409; Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4SCC 406
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Also apart from the Contempt of Court Act, 1971, we have Rules to regulate proceedings for contempt of the Supreme Court, 1975. The rules have been made in furtherance of the Supreme Court Rules, 1966 and for exercise of the powers under section 23 of the Contempt of Courts Act, 1971, read with article 145 of the Constitution of India and all other powers enabling it in this behalf. The above stated rules also contain Performa for sending notice of contempt and warrant of commitment of contempt etc. the rules are as herein stated under:-
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Supreme Court RulesContempt of court RULES TO REGULATE PROCEEDINGS FOR CONTEMPT OF THE SUPREME COURT,
197554
In exercise of the powers under section 23 of the Contempt of Courts Act, 1971, read with article 145 of the Constitution of India and all other powers enabling it in this behalf, the Supreme Court hereby makes, with the approval of the President, the following rules: 1. (1) These Rules may be called the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975. (2) They shall come into force on the date of their publication in the Official Gazette. PART I 2. (1) Where contempt is committed in view or presence or hearing of the Court, the contemner may be punished by the Court before which it is committed either forthwith or on such date as may be appointed by the Court in that behalf. (2) Pending the determination of the charge, the Court may direct that the contemner shall be detained in such custody as it may specify: Provided that the contemner may be released on bail on such terms as the Court may direct. PART II 3. In case of contempt other than the contempt referred to in rule 2, the Court may take action: (a) suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or
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PART III 16. Where a person charged with contempt is adjudged guilty and is sentenced to suffer imprisonment, a warrant of commitment and detention shall be made out in Form IV under the signature of the Registrar. Every such warrant shall remain in force until it is cancelled by order of the Court or until it is executed. The Superintendent of the Jail shall in pursuance of the order receive the person so adjudged and detain him in custody for the period specified therein, or until further orders.
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REGISTRAR
*To be omitted where the person charged is allowed or ordered to appear by Advocate.
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FORM II
WARRANT OF ARREST [Rule II] IN THE SUPREME COURT OF INDIA (Original Jurisdiction) To (Name and designation of the person or persons who is or are to execute the warrant) Whereas ___________of_____________is charged with committing contempt of this Court, you are hereby directed to arrest the said______and to produce him before this Court on the_______day of______200__ at 10.30 oclock in forenoon. Herein fil not. (If the Court has issued a bailable warrant, the following endorsement shall be made on the warrant) If the said_______shall give bail in the sum of Rs._________with one surety in the sum of Rs._________( or two sureties each in the sum of Rs.__________) to attend before this Court on the _______day of_____200___, at 10.30 oclock in the forenoon and to continue so to attend until otherwise directed by this Court, he may be released.
(SEAL)
REGISTRAR
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FORM III BOND AND BAIL-BONDS AFTER ARREST UNDER A WARRANT IN TH E SUPREME COURT OF INDIA (Original Jurisdiction) I,____________(name) of_____________being brought before the District Magistrate of_____________(or as the case may be) under a warrant issued to compel my appearance to answer to the charge of contempt of the Supreme Court do hereby bind myself to attend the Supreme Court on the _________day of_________next, to answere to the said charge, and to continue so to attend, until, otherwise directed by the Supreme Court, and in case of my making default herein, I bind myself to forfeit to Union India, the sum of rupees______________________ Dated this__________day of____________200___ (SIGNATURE) I do hereby declare myself surety for the above named of_________that he shall attend before_____________in the Supreme Court on the __________day of_________next, to answer to the charge on which he has been arrested, and shall continues to attend until otherwise directed by the Supreme Court, and, in case of his making default therein, I bind myself to forfeit to Union of India, the sum of rupees_______________. Dated this_________day of______200__
(SIGNATURE)
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(SEAL) REGISTRAR
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Defences to Contempt
United States v. Bryan, 339 U.S. 323, 330 (1950) 800 F.2d 33 (2nd Cir. 1986 57 Maggio v. Zeitz, 333 U.S. 56, 69, 92 L.Ed. 476, 68 S.Ct. 401 (1948).
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that his compliance is "factually impossible."59 In the arena of asset protection planning, the creation and funding of the planning structure takes place well in advance of any dispute or claim giving rise to proceedings in which a subpoena, court order compelling action, or the like will issue. As such, the time nexus between the creation of the trust (i.e., what one might claim is the act that creates the inability to perform) and the issuance of some future subpoena or court order, will be absent. In this case, the defense of impossibility of performance can be expected to be a complete defense to a proceeding of contempt of court When determining whether an alleged contemnor has the ability to comply with a court's order, the court is generally limited to examining the facts and circumstances that exist at the time the order is issued that create the impossibility on the part of the contemnor. Thus, in the Rylander case,
60
certain corporate documents. At the time the order entered, Rylander did not have possession of the documents and was no longer a corporate officer. Because insufficient proof was offered to show Rylander had actual possession of the documents and that he did not have access to the documents without committing some extreme act, the United States Supreme Court permitted his defense of impossibility and ruled Rylander could not be held in contempt of the court's order. Self-Created Impossibility and Good Faith Inability to comply with a court's order will not be recognized as a valid defense in those situations where the impossibility to perform was self-created for the specific purpose of avoiding a court's order or subpoena that has been
58
Shillitani v. United States, 384 U.S. 364, 371, 16 L.Ed. 2d 622, 86 S.Ct. 1531 (1966); Maggio v. Zeitz, supra, 333 U.S. at 72-73. 59 United States v. Rylander, 460 U.S. 752, 757, 75 L.Ed. 2d 521, 103 S.Ct. 1548 (1983).
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See 17 C.J.S. Contempt 19 (63) See Federal Trade Commission v. Blaine, 308 F. Supp. 932 (N.D. Ga. 1970); see also Ex parte Fuller, 50 S.W. 2d 654 (Mo. 1932) 63 Id. at 932-33 64 United States v. Goldstein, 105 F.2d 150 (2nd Cir. 1939)
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The apology to be available to the contemnor must be sincere and unconditional. It must be definite and must be made early enough in the proceedings to merit full consideration. The Supreme court in Re Vinay Chandra Mishra66 [the alleged contemner] had rejected the
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Stotler and Co. v. Able, 870 F.2d 1158 (7th Cir. 1989); Foust v. Denato, 175 N.W.2d 403 (Iowa 1970)
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affidavits, prayers and submissions made 619 at the Bar and to the court earlier. We have reproduced that apology verbatim earlier. In the apology he has pleaded that he has deeply and regretfull realised that the situation, meaning thereby the incident, should never arisen and remorse and a feeling of moral holding the elective posts of have and the fact that it arose has subjected him to anguish guilt. That feeling has been
compounded with the fact that he was a senior advocate and was the President of the High Court Bar Association and the Chairman of the Bar Council of India which by their nature show that he was entrusted by his professional fraternity to set up an example of an ideal advocate. He has guiltily realised his ailure to approximate to this standard resulting submitting in the present proceedings and he was, therefore, apology for the incident in question. We have not accepted this apology, firstly because we find that the apology is not a free and frank admission of the misdemeanor he indulged in the incident in question. Nor is there a sincere regret for the disrespect he showed to the learned Judge and the Court, and for the harm that he has done to the judiciary. On the other hand, the apology is couched in a sophisticated and garbed language exhibiting more an attempt to justify his conduct by reference to the cir- cumstances in which he had indulged in it and to exonerate himself from the offence by pleading that the condition in which the It is a clever and disguised "situation" had developed was not an ideal one and were it ideal, the "situation" should not have arisen. only not exhibiting attempt to refurbish his image and get out of a tight situation by not the least sincere remorse for his conduct but by his unconditional
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officers entrusted with the sacred task of delivering justice. A failure on the part of this Court to punish the offender on an occasion such as this would thus be a failure to perform one of its essential solemnly entrusted to all these it duties by the Constitution and the people. For
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Supreme Court RulesContempt of court Contempt of court vis-a-vis Freedom of Speech and expression
Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something Denning The Constitution has no doubt been created by the people. But this instrument has itself created the Courts, which means that the people in their wisdom realized that there must be a forum (or fora) where disputes between the people could be resolved and grievances of the people redressed peacefully. It is in the nature of things that in every society there will be disputes between the people and grievances of the people. If there is no forum to resolve these disputes and redress these grievances peacefully, they will be resolved violently with bombs, guns, knives and lathis. Hence the judiciary is a great safety valve. By giving a hearing to a person having a grievance, and by giving a verdict on the basis of settled legal principles, the Court pacifies that person, otherwise the grievance may erupt violently. The judiciary thus maintains peace in society, and no society can do without it. Looking at it from this angle one can immediately realize that in a democracy the purpose of the Contempt of Court power can only be to enable the Court to function. The power is not to prevent the master (the people) from criticizing their servant (the Judges) if the latter do not function properly or commit misconduct. far more important at stake. It is no less than freedom of speech itself. Lord
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68
69
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(1968) 2 QB 150:
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is wide
off the mark in modern times in a democracy. It is a hangover of the archaic and obsolete British Law of Contempt which originated at a time when the British King was supreme, and the Judges were his agents. In a democracy it is not criticism by a few persons which brings a Judge into disrepute or shakes his authority, it is his own conduct (or rather misconduct) which can do so. If a Judge is honest and upright (and the people know about the integrity of a Judge very quickly) no amount of misguided and baseless criticism can bring him into disrepute or shake his authority, for such authority comes from the confidence of the public at large. We may now come back again to the central point in this paper. I submit that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt power is not to vindicate or uphold the majesty and dignity of the court (for it is automatically vindicated and upheld by the proper conduct of the Judge, not by threats of using the contempt power) but only to enable the court to function. The contempt power should only be used in a rare and very exceptional situation where without using it, it becomes impossible or extremely difficult for the court to function. In such rare and exceptional situations, too, the contempt power should not be used if the mere threat to use it suffices. It has, no doubt, been mentioned in Section 2(c) of the Contempt of Courts Act, 1971 that any act which scandalises or tends to
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(975 QB 373)
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the Constitution?
As jurisdiction to punish for contempt is inherent in all courts of record and it is sui generis , no procedure has been prescribed for its enforcement except what the courts themselves followed as necessary in the interests pf justice. And therefore it was urged in State of Bombay v. Mr. P,76 that punishment in contempt does deprive a person of his liberty and that since there was no prescribed procedure for contempt proceedings, the law of contempt offended Article 21 and as such was ultra vires. The Bombay High court negatived these arguments on the simple ground that the existing procedures for contempt proceedings do have statutory sanction. Section 3 of the Contempt of Courts Act provides that every High Court shall have and exercise the same jurisdiction, powers and authority in accordance with the same practice and procedure in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt itself. So the Court in view of these provisions held that the High court as a court of record is entitled to deprive a person of his liberty in matters relating to contempt when that procedure has been followed.
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throwing a stone at
him or an egg78, disturbances and interruptions in court while in sitting79, defiance and insult to a judge such as by an advocate snatching a court document,80 burning a court document81 , making unfair and insulting remarks at the judge, private communication to judges,82 are all various acts of contempt which invite punishment. When a judge is pronouncing judgment, for a man to jump up, wave his hand and shout an exclamation of approval is contempt. Applauding in open court is contempt.83 In India the following instances have been held to be contempt of court; making or disparaging remarks by an advocate against the subjudge on failure to obtain an ad-interim order,
84
of his voice unusually high as to the annoyance of the Magistrate before whom he was conducting trial for an accused and also using derogatory language85, filing false affidavit or making false affidavit on oath which has the tendency to impede, obstruct and interfere with the administration of justice86, removing a counsels brief to make improper use of it , is contempt87, an article published in a weekly newspaper contained highly objectionable, scandalising remarks, about courts, the author, proprietor and editor and owner of the printing press were all held guilty of contempt.
88
77 78
Anon 1931 Dy. 188B.N Cosgrave, In re, (1877) Seaton Judgments and orders, Edn. 6, p.465 79 Stone case, (1796) 6 Term Rrep 527: 25 St.Tr. 1165 80 Walt v. Lergertwood,(1874)LR 2H LS367 81 Oswald, p. 47 Times, 19893 April19th 82 Bahama Island, IN re, ASP and 1893 AC 138 83 Oswald, p.19 84 M.B Sanghi, Advocate v. high Court of Punjab and Haryana, (1991) 3SCC 600 85 K.A Mohd. Ali v. C.N.Prasannan, 1994 Supp(3) SCC 509 86 Dhananjay Sharma v. State of Haryana, (1995) 3SCC 757 87 Bateman v. Cconvey,(1753)1 Bro Parl Case 519 88 Khusi Ram v. Honble High court P&H; AIR 1992 SC 2203
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The notice served by Delhi high court to Irfan over the cartoon on former Chief Justice of India
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Reactions....
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CHAPTER- V The Law of Contempt in other Countries International law and standards
The common law doctrine of contempt of court does not exist in civil law jurisdictions in such a broad, encompassing sense,89 but there are undoubtedly functional equivalents, particularly in matters relating to freedom of expression. In France, for example, Article 9-1 (Protection de la presomption dinnocence) of the Civil Code deals with publications which allegedly prejudice the presumption of innocence. There are also laws restricting the criticism of courts and judges in many civil law jurisdictions.90
89
See M. Chesterman, Contempt: In the Common Law, but not the Civil Law (1997) 46 ICLQ 521. 90 See M.K. Addo, Freedom of Expression and Criticism of Judges (Ashgate Publishing, 2000).
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Before
examining
the
legal
framework
regulating
freedom
of
expression and the administration of justice in different countries, it is useful to look at their status under international law. The major international and regional human rights instruments on civil and political rights the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples Rights (ACHPR) all protect both freedom of expression and the administration of justice. Freedom of expression is protected in Article 19 of the ICCPR as follows: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The administration of justice, particularly the right to a fair trial and the presumption of innocence, is protected in Article 14 of the ICCPR, which states, in part: (1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the Parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment
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See Mukong v. Cameroon, views adopted by the UN Human Rights Committee on 21 July 1994, No.458/1991, para. 9.7. 92 The Sunday Times v. United Kingdom, 26 April 1979, Series A No. 30, 14 EHRR 229, para. 49.
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Sunday Times v. UK (No.2), 26 November 1991, Series A No. 217, 14 EHRR 229, para. 50.
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There needs to be a publication In relation to proceedings which are active It relates only to a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced
For contempt of court to be found the proceedings must be active as defined by the Contempt of Court Act 1981. There are different tests to
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Arrest without a warrant The issue of a warrant for arrest The issue of a summons to appear before the court The service of an indictment or other document specifying the charge An oral charge Criminal proceedings will conclude and therefore cease to become active when one of the following happens: An acquittal or a sentence Any other verdict or finding or other decision which puts an end to the proceedings By discontinuance or operation of law
The Contempt of Court Act 1981 provides that civil proceedings become active from the time when arrangements are first made for the hearing of the case or from when the hearing begins. This active period is deemed to conclude when the proceedings are disposed of by settlement or judgment or are discontinued or withdrawn.
However the law of contempt has attracted criticism on three main grounds. It is distinguished from the general criminal law by its curious procedure which deprives an accused of the safeguards normally vouchsafed in British law. It is also uncertain in its application, and so runs counter to that aspect of rule of law according to which no man should be punishable except for a distinct breach of law. It is argued
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asset protection trust (or any other trust for that matter) may be held in contempt of court, the court must consider whether the settlor's actions come within the definition of contempt, and whether any valid defenses exist. drafted, properly Under an asset protection trust that is properly implemented and properly administered, the
"impossibility of performance" defense to a charge of contempt will be a complete defense to any such charge, so long as the impossibility is not "self-created" in close time proximity to the issuance of the court order or subpoena. In a lecture by Justice William on making a comparative analysis of the Law in India and American drew certain calculations. Under American Law:1. The courts will not interfere under Contempt Law unless there is a clear and present danger to the administration of justice.
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Suggestions
It took a decade for the Government to acknowledge, under pressure of public opinion, that the law of contempt was "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens - the right to personal liberty and the right to freedom of expression. The Sanyal Committee was set up in 1961 to examine the law and suggest reforms. It took another decade for the recommendations of this committee to be implemented in the Contempt of Courts Act, 1971. The Act of 1971 offered some guidelines for reporting and comment on judicial proceedings that would not attract contempt charges. For example, "fair and accurate report of a judicial proceeding" and "fair comment on the merits of any case which has been heard and finally decided" would not be contempt. The Act also provided that contempt would not be punishable unless it "substantially interferes, or tends substantially to interfere with the due course of justice". Notwithstanding these improvements, the definitions of contempt did not do away with the uncertainty. 'Scandalizing the Court' was contempt, but what constituted 'scandalizing the Court'? Justice Krishna Iyer captured the problems inherent in the contempt law, in a 1974 judgment, in these colourful phrases: "A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process ofbrevi manu conviction, may unwittingly trench upon civil liberties ..."
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"Truth" as defense
The most recent attempts to reform the contempt law started with the recommendation of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 to allow 'truth' as defense in matters of Contempt of Court. While making this recommendation, the Commission observed: "Judicial decisions have been interpreted to mean that with the law as it now stands, even truth cannot be pleaded as a defense to a charge of contempt of court. This is not a satisfactory state of law. It would, indeed be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto of Satyameva Jayate, in the High Courts and Yatho dharma statho jaya in the Supreme Court, the courts could rule out the defence of justification by truth." The NCRCW recommendation was not particularly revolutionary. In the UK and Australia, truth as defense to a charge of contempt by scandalising to contempt. had been available for several decades. The recommendation eventually resulted in a bill to amend the law related
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Conclusion
Law grows and though principles of law remain unchanged, yet their application is to be changed with the changing circumstances of the time as Lord Coleridge observed, Law of contempt of courts is not an exception to whatever stated above. Some unprecedented incidents as referred earlier offered an opportunity to the Apex Court to determine and lay down categorically the necessary and required legal principles which have far reaching ramifications in judicial process in general and law of contempt of court in particular. In the process, the apex court, it is admitted played and discharged very commendable role, sometime overruling its own decision. However, despite of judicial propriety, probity and precedents, one or the other incident does occur.94 That necessitates a belief in need of well defined and explicit or specific application of the said law. The contempt of court is a special jurisdiction and with caution whenever an act adversely effects the administration of justice or which tends to impede its course or tends to shake public in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts of law. It is an unusual type of jurisdiction combining the jury, the judge and the hangman, and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice form being maligned. In the general interest of the community it is imperiled and there should be no unjustifiable interference in the administration of justice.
94
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The power to punish the contemner is therefore granted to the court not because judges need the protection but because the citizens need an impartial and strong judiciary.
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Newspaper Reports
The Indian Express
Tue Feb 22 2011, 01:11 hrsNew Delhi:
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BIBLIOGRAPHY
The material for this project has been taken from the following references:-
BOOKS:Nair, K. Balasankaran, Law of contempt of court in India, 2004; Atlantic Publishers & Distributors, Delhi Ramachandrans, Miller, C.J, V.G, Contempt of Court; of 2000 Court; Edn; 6thEdn Oxford
2002;Eastern Book Company, Lucknow Contempt University Press, London Rai Kailash, Legal Ethics, Bench and Bar Relations; 7th Edn, 2007;Central Law Publications, Allahabad
ARTICLES: Dilip Uke & Sureshchandra R. Bhosale, Legal Profession and Contempt of Court- A need for harmony and Balance; Indian Bar Review; Vol. 26(2) 1999 Justice Markandey Katju, Judge Supreme Court of India; Contempt of Court: Need for a fresh look; 2007 CriLJ/16 Vol. Dr. Janusz Kochanowski; Freedom of Speech and Contempt of Court:; www.kochanowski.pl/pub_freedomofspeech.doc
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http://legalperspectives.blogspot.com/2010/10/freedomof-speech-versus-contempt-of.html
JOURNALS
Indian Bar Review Supreme court cases Journal of Indian Law Institute Criminal Law Journal
STATUTES
CONTEMPT OF
COURT
ACT, 1971
WEBSITES
NEWSPAPERS
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