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Legal brain storming- Ur opinion please

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  • Amitabh Thakur
    Legal brain storming on issue of Contempt This is an issue that had been disturbing us for long. Having entered the field of judicial reforms along with
    Message 1 of 2 , May 17, 2013
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      Legal brain storming on issue of Contempt

      This is an issue that had been disturbing us for long. Having entered the field of judicial reforms along with transparency and accountability in governance, we often have to face this very serious issue.

      When we present a matter before the Hon’ble Court, the Court often directs the concerned respondents to file their counter affidavits or their replies. Very often this reply has to be given within a fixed time period. The reply is asked so that the State’s position could be understood by the Court and then it can arrive at a definite decision,

      As is possibly quite well known, Audi alteram partem, the Latin phrase that literally means "hear [audi] the other side too” is the legal principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. It is considered a principle of fundamental justice or equity in most legal systems.

      While in principle this rule is absolutely correct and quite relevant, in actual operation many occasions are seen when this rule is widely played with by the interested parties. The Hon’ble Court passes its order saying that the counter reply/counter affidavit will be presented within say two or four or eight weeks by the concerned respondents, but instead of complying with the orders, the respondents when they find themselves on a lose wicket or in a precarious position, devise the time-tested method of delaying tactics.

      In such situations, the respondents (more often the various State agencies) are found not filing their affidavit for long. Not only does the prescribed period passes, but many more days pass on and the matter remains pending. When the matter comes for hearing, the respondents are often seen taking the pretext of still in the process of filing the counter reply and the process of justice gets delayed accordingly.

      In an attempt to find a corrective legal ameliorative in a purely legal manner, I and wife Nutan filed a few contempt petitions in the Hon’ble Allahabad High Court, Lucknow Bench. Here it was submitted that in compliance to the direction of the Hon’ble Court through a definite order, the respondent has not filed any affidavit till date. Hence, contempt has been committed

      The simple logic was that as per section 2(b) of the Contempt of Courts Act 1971, civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. When the Hon’ble Court asks a respondent to file its counter reply, it is not only a direction and the order of the Court, it is also an undertaking by the respondents that it would clarify its position by filing a counter reply. Hence when the respondents do not file any reply for months and years, it is a wilful disobedience of the order, direction and undertaking to the Court, and shall accordingly be treated as contempt.

      The Hon’ble Court did not agree with our contentions and point of view and said in its order-“Learned counsel further submits that in compliance to the aforesaid direction, no Secretary to the Government of U.P. has filed any affidavit till date. Hence, contempt has been committed. However, to this effect, learned counsel has not produced any case law to support his version.
      After hearing the learned counsel and on perusal of record, it appears that the direction issued by the writ court is procedural one. By not filing any affidavit, the writ court may draw an adverse inference or extend the time by taking cognizance of the matter. In view of above, no contempt is committed. However, liberty is granted to the petitioner to raise the same before the court who has issued the direction in the pending writ petition. But presently, no contempt exits.”

      A few legal issues still remain in my mind where I am soliciting the opinion of my knowledgeable friends-
      1. When the direction issued by the writ court is procedural one, would it still not be a direction, first and foremost?
      2. Hence being a direction, would it not come under the purview of civil contempt as defined in section 2(b) of the Contempt Act?
      3. Is there any other definite case law in this regards?
      4. As a man of prudence, how do you rate the arguments put forth by us and to what extent do you agree or disagree to them?
      5. Do you find any logic or scope for us to carry forth the matter any further?

      We eagerly wait for your valuable response to this legal question, on which possibly the last word has not been spoken so far and which might prove to be a very useful legal tool to curb the tendency of delaying the filing of replies by respondents and in ensuring faster justice.




      Amitabh Thakur
      Lucknow
      # 094155-34526
    • Ari
      Dear Amitabh, I appreciate your spirit of reforming the system while staying with it as part of it. here are few points to ponder! How long can we keep trying
      Message 2 of 2 , May 17, 2013
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        Dear Amitabh,
                             I appreciate your spirit of reforming the system while staying with it as part of it. here are few points to ponder! How long can we keep trying to cure cancerous body by providing it with first aid on superficial pimples of it.
        1. The existing coercive criminal justice system with absolute discretion and protocols and practices was designed to advance the agenda of a state, sole objective of that was to perpetuate unhindered economic exploitation and it continues unabated. The complete set of business rules, regulations for the courts was designed to punish such suitors with enormous costs  and delays and break their back to have admirable effect of preventing future complaints of injustice and corruption.
        All the intake system of judiciary, its laws, its language, its accountability mechanisms is to overawe Indians, most startling, these courts are run like Baniya's shop of our village, that shop is run exactly in his own name and here in judiciary also we plead "In the court of Mr..so and so ...learned..." while interacting with these below average holy cows, you will understand their capabilities and judicial senses.
        Forget about lower judiciary, come to high courts, knowing it fully well that the fellow attained position of High court judge, since he was a resource magnet and capability to please the people with that everything possible....one human can fantasies. 
        2.when we have the fifty percent of SC Judges as corrupt against whom we can give afidavit, one can imagine the extent of rot. question is how long can we keep misleading and deceiving ourselves by maintaining that false aura and holier than thou attitude.
        3.what is your take on ovehauling this system, no police reforms will every succeed in isolation, until you tame the wild bulls of colonial judiciary and stop treating them as holy cows.
        4.If criminals will know of getting the divine justice within no time, if every police officer perpetrating injustice and corruption will know of meeting his fate in time bound manner, he will not dare to do it. here we have two deceptive institutions that were founded by colonial rulers, Local militia in the name of police and criminalized system of protecting criminal acts of state by mechanism named as Colonial judiciary and it is very big blot on the institution of justice. Until we introduce jury system to dominate and isolate corrupt judges with participation of community leaders in jury, people will keep dying with injustices.
        5. For Police we need to completely demilitarize, decentralize and decimate the colonial power formation with stringent local accountability mechanisms in the hands of local watch dog body of citizens that must decide operational objectives for local police and make SP BABU work in the field and hold him accountable for his command failure and supervisory failure, we need to kick out ceremonial functioning of Supervisory police officers and make them take proactive part in policing that is nothing but street job.

        Until we work on these issues in an organized manner, it will be just time pass. anyway keep it up.



        On 17 May 2013 04:25, Amitabh Thakur <amitabhth@...> wrote:
         

        Legal brain storming on issue of Contempt

        This is an issue that had been disturbing us for long. Having entered the field of judicial reforms along with transparency and accountability in governance, we often have to face this very serious issue.

        When we present a matter before the Hon’ble Court, the Court often directs the concerned respondents to file their counter affidavits or their replies. Very often this reply has to be given within a fixed time period. The reply is asked so that the State’s position could be understood by the Court and then it can arrive at a definite decision,

        As is possibly quite well known, Audi alteram partem, the Latin phrase that literally means "hear [audi] the other side too” is the legal principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. It is considered a principle of fundamental justice or equity in most legal systems.

        While in principle this rule is absolutely correct and quite relevant, in actual operation many occasions are seen when this rule is widely played with by the interested parties. The Hon’ble Court passes its order saying that the counter reply/counter affidavit will be presented within say two or four or eight weeks by the concerned respondents, but instead of complying with the orders, the respondents when they find themselves on a lose wicket or in a precarious position, devise the time-tested method of delaying tactics.

        In such situations, the respondents (more often the various State agencies) are found not filing their affidavit for long. Not only does the prescribed period passes, but many more days pass on and the matter remains pending. When the matter comes for hearing, the respondents are often seen taking the pretext of still in the process of filing the counter reply and the process of justice gets delayed accordingly.

        In an attempt to find a corrective legal ameliorative in a purely legal manner, I and wife Nutan filed a few contempt petitions in the Hon’ble Allahabad High Court, Lucknow Bench. Here it was submitted that in compliance to the direction of the Hon’ble Court through a definite order, the respondent has not filed any affidavit till date. Hence, contempt has been committed

        The simple logic was that as per section 2(b) of the Contempt of Courts Act 1971, civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. When the Hon’ble Court asks a respondent to file its counter reply, it is not only a direction and the order of the Court, it is also an undertaking by the respondents that it would clarify its position by filing a counter reply. Hence when the respondents do not file any reply for months and years, it is a wilful disobedience of the order, direction and undertaking to the Court, and shall accordingly be treated as contempt.

        The Hon’ble Court did not agree with our contentions and point of view and said in its order-“Learned counsel further submits that in compliance to the aforesaid direction, no Secretary to the Government of U.P. has filed any affidavit till date. Hence, contempt has been committed. However, to this effect, learned counsel has not produced any case law to support his version.
        After hearing the learned counsel and on perusal of record, it appears that the direction issued by the writ court is procedural one. By not filing any affidavit, the writ court may draw an adverse inference or extend the time by taking cognizance of the matter. In view of above, no contempt is committed. However, liberty is granted to the petitioner to raise the same before the court who has issued the direction in the pending writ petition. But presently, no contempt exits.”

        A few legal issues still remain in my mind where I am soliciting the opinion of my knowledgeable friends-
        1. When the direction issued by the writ court is procedural one, would it still not be a direction, first and foremost?
        2. Hence being a direction, would it not come under the purview of civil contempt as defined in section 2(b) of the Contempt Act?
        3. Is there any other definite case law in this regards?
        4. As a man of prudence, how do you rate the arguments put forth by us and to what extent do you agree or disagree to them?
        5. Do you find any logic or scope for us to carry forth the matter any further?

        We eagerly wait for your valuable response to this legal question, on which possibly the last word has not been spoken so far and which might prove to be a very useful legal tool to curb the tendency of delaying the filing of replies by respondents and in ensuring faster justice.




        Amitabh Thakur
        Lucknow
        # 094155-34526




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