Friday, August 10, 2012
One man show, I alone hv to spend time and money on major repairs
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Friday, August 3, 2012
Criminal Contempt Jurisdiction of the Court......Dignity of the Court and Dignity of Citizens of India
Criminal Contempt Jurisdiction of the Court......Dignity of the Court and Dignity of Citizens of India.
I start with the presumption of the supremacy of the People of India who have given the Constitution of India to themselves and the State organs comprising The Representatives of the People, The Ministers, The Commissioners and The Judges- Owe their origin, derive their authority, discharge their responsibilities and are conferred Powers, Privileges and Immunities only for one and only one purpose and that is for Security and Dignity of each and every individual. The Govts are entitled to collect Taxes from the Labouring Indians and in return to ensure security and dignity to each and every Indian.
A greatest degree of certainty must be supplied to every law and in particularly to a penal law which seek to imprison a man having committed that offence. When come to law of Criminal contempt of the court, wherein a Citizenry, having acted in a manner, is exposed to personal interpretation of every second Judge. Today, the scene is, that my alleged act is an sure offence for one Judge and none for second Judge.
This is not good. The Court must find the occasion to fix the ambit of offence. "Lowered the dignity"..... "tarnished image"....... concept are fundamentally personal opinion of every individual.... where the saying goes as- we do not see things as they are, but we see things as we are"............yet an act which is so scandalous in nature & content which every mind of ordinary prudence will regard it unworthy and uncalled for, may be regarded as having element of lowering the dignity... tarnishing the image.
When Judges says that act of Mr.X has lowered and tarnished the image of highest judiciary....... it is of LEAST / NO importance what the Judges feel and infer from alleged acts of Mr.X.......... what is of only importance- when if the general public at large is offended by the alleged act of Mr.X...... and there is public opinion coming that act of Mr.X has lowered and tarnished image.
Moreover, the dignity and the respect by its very nature cannot be commanded or enforced. It is earned by service and sacrifice in a similar fashion the head of the Family earn by securing and ensuring a food security, a good education, access to healthcare, a roof to live in safely, to every member. A king merely shouting from the Ivory tower commanding Respect does not get any. Instead, People fear of him for his mindless presumed and imagined insult.
The Judges are not divine beings. Their acts and omissions can have the element of error and foul play inherent in every other human being. Their acts and omissions can be and must be critically argued. The essence of immorality is the tendency to make an exception of MYSELF.
The Courts are not mere benches where they adjudicate upon disputes but are Temples where they get an opportunity to serve and protect suffering humanity and foester human development. The Court of Law or as fondly called the Courts of Equity, like the Temples, must be the place at least where People can come with no fear.
A Critic is a Friend of the Court. A Person who seeks to publicly criticize any Judicial action or inaction invariably requires a pack of Courage, Conviction and Complete faith in his so critical stand.
Ordinarily, a person publicly critical of any Judicial action or inaction doesn’t do so to malign or scandalize any Judge or Judiciary, or out of sheer fancy, or to gain cheap publicity and on the contrary he is the ONE who is concerned and well wisher of the Judge and the Judiciary. He is the ONE who wants the Person or the System to be corrected. In Fact, it is no exaggeration if I were to say that he is the ONE who wants the dignity of the Justice System be protected. ONE who criticizes has a profound interest in the well being of the criticized.
The inherent objective and purpose of criticism is not to malign but to ensure that a person loaded with discretionary powers exercises the same not only in accordance with law but also ensure it is socially just and reasonable. The Judicial dignity and Rule of Law in the society go hand in hand. They are inalienable.
It appears that judges suffer from selective blindness or they just play us for fools. If at all the Judges are so concerned and passionate about Judicial dignity, why are they not disturbed, sleepless and responsive at the premise where millions of childrens are malnourished, innocent childrens are forced to beg by begging mafias, People are living on the footpath, Farmers committing suicides, millions of people displaced and never rehabilitated, in the name of development.
Why it doesn’t shocks the conscience of the Judges by the fact that millions of people still do not have access to clean drinking water and are forced to do toilets in the open.
Why it doesn’t shock the conscience of the Judges by the fact that millions of Childrens and women are trafficked for prostitution and the State fondly call them Commercial Sex Workers {CSWs}. Do these CSWs have the requisite sanction of Constitution of India?
The Judges merely talking tough and doing nothing. Rather they have assumed the role of commentator than adjudicator, at least when mighty State is involved.
Is it sufficed that Orders are passed on deaf ears of the State, without being follow up of their implementation. Doesn’t the Judiciary has powers to monitor implementation of Orders passed by itself. And the State leadership get away Judges momentary fury with cultivated tradition of strictures and criticism, caution and advice and are merely branded callous or worse.
The sustained bleeding of the section of the People’s inhumane sufferings has failed to impress the Judges. The Judges are not seen alarmed or panicked over the state of affairs.
It can be said with near certainty that Judges of India have hardly employed the Landmark Judgment of Hon. Justice Krishna Iyer in Ratlam Municipality Vs Vardichand (1980) in which the Hon’ble Court fully acknowledging the magnitude of corruption and colossal waste of public money in the State Administration, observed that the State cannot plead paucity of funds for its inability to ensure basic necessities of life. The Court further Said, "regardless of the Cash in their coffers, even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions; Otherwise a Statutory body or Govt agency may legally defy duties under the Law by urging in self defence a self created bankruptcy or perverted expenditure budget. That cannot be."
It is pertinent to mention words of wisdom by some of the finest Jurists we have in recent times on the sensitive issue of Contempt of Courts.
The Hon. Supreme Court, thru Justice Krishna Iyer, did try to restrain the use of Contempt of Court Act 1971 when it stated in Ram Dayal Markarha V State of MP AIR 1978 SC 922 that the path of Justice is not strewn with roses and Justice being not a cloistered virtue, it must be allowed to suffer the scrutiny, even though outspoken comments of ordinary man.
Hon’ble Justice Markandey Katju has said and I quote, “In a Democracy the People should have the right to criticize Judges. The Purpose of the contempt power should not be to uphold the Majesty and Dignity of the Court but only to enable it to function.
As observed by Lord Denning, one of the finest Judge of England “Let me say at once that we will never use contempt Jurisdiction as a means to uphold our own dignity. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor we resent it. For there is something far important at stake. It is freedom of speech itself”.
The Contempt of the Court or Scandalizing the Judges is a whim that is fancy. This is an illegality for an undefined cause. It is simply Judge’s vandalism. Overzealous defenders of judicial dignity only serve to erode its credibility.
Satyamev Jayate as we call it and which is one of the foundation of our Life and it is fallacy to presume that Truth came to be a valid defence only after the amendment so brought then.
Yet a Constitution, no matter how well conceived, can only create institution on papers. Breathing life into them is up to the men occupying seat of power.
The ultimate judicial dignity lies in People getting “Preamble Justice”, or else the Judges may seek illusory, cosmetic and customary dignity. The Judicial dignity shall occasion, by default, where the offender of law will stop laughing at the premise of threat of legal action.
With great hope of accountability and wisdom in my Guardians.
Sandeep Jalan
Advocate
Mumbai.
I start with the presumption of the supremacy of the People of India who have given the Constitution of India to themselves and the State organs comprising The Representatives of the People, The Ministers, The Commissioners and The Judges- Owe their origin, derive their authority, discharge their responsibilities and are conferred Powers, Privileges and Immunities only for one and only one purpose and that is for Security and Dignity of each and every individual. The Govts are entitled to collect Taxes from the Labouring Indians and in return to ensure security and dignity to each and every Indian.
A greatest degree of certainty must be supplied to every law and in particularly to a penal law which seek to imprison a man having committed that offence. When come to law of Criminal contempt of the court, wherein a Citizenry, having acted in a manner, is exposed to personal interpretation of every second Judge. Today, the scene is, that my alleged act is an sure offence for one Judge and none for second Judge.
This is not good. The Court must find the occasion to fix the ambit of offence. "Lowered the dignity"..... "tarnished image"....... concept are fundamentally personal opinion of every individual.... where the saying goes as- we do not see things as they are, but we see things as we are"............yet an act which is so scandalous in nature & content which every mind of ordinary prudence will regard it unworthy and uncalled for, may be regarded as having element of lowering the dignity... tarnishing the image.
When Judges says that act of Mr.X has lowered and tarnished the image of highest judiciary....... it is of LEAST / NO importance what the Judges feel and infer from alleged acts of Mr.X.......... what is of only importance- when if the general public at large is offended by the alleged act of Mr.X...... and there is public opinion coming that act of Mr.X has lowered and tarnished image.
Moreover, the dignity and the respect by its very nature cannot be commanded or enforced. It is earned by service and sacrifice in a similar fashion the head of the Family earn by securing and ensuring a food security, a good education, access to healthcare, a roof to live in safely, to every member. A king merely shouting from the Ivory tower commanding Respect does not get any. Instead, People fear of him for his mindless presumed and imagined insult.
The Judges are not divine beings. Their acts and omissions can have the element of error and foul play inherent in every other human being. Their acts and omissions can be and must be critically argued. The essence of immorality is the tendency to make an exception of MYSELF.
The Courts are not mere benches where they adjudicate upon disputes but are Temples where they get an opportunity to serve and protect suffering humanity and foester human development. The Court of Law or as fondly called the Courts of Equity, like the Temples, must be the place at least where People can come with no fear.
A Critic is a Friend of the Court. A Person who seeks to publicly criticize any Judicial action or inaction invariably requires a pack of Courage, Conviction and Complete faith in his so critical stand.
Ordinarily, a person publicly critical of any Judicial action or inaction doesn’t do so to malign or scandalize any Judge or Judiciary, or out of sheer fancy, or to gain cheap publicity and on the contrary he is the ONE who is concerned and well wisher of the Judge and the Judiciary. He is the ONE who wants the Person or the System to be corrected. In Fact, it is no exaggeration if I were to say that he is the ONE who wants the dignity of the Justice System be protected. ONE who criticizes has a profound interest in the well being of the criticized.
The inherent objective and purpose of criticism is not to malign but to ensure that a person loaded with discretionary powers exercises the same not only in accordance with law but also ensure it is socially just and reasonable. The Judicial dignity and Rule of Law in the society go hand in hand. They are inalienable.
It appears that judges suffer from selective blindness or they just play us for fools. If at all the Judges are so concerned and passionate about Judicial dignity, why are they not disturbed, sleepless and responsive at the premise where millions of childrens are malnourished, innocent childrens are forced to beg by begging mafias, People are living on the footpath, Farmers committing suicides, millions of people displaced and never rehabilitated, in the name of development.
Why it doesn’t shocks the conscience of the Judges by the fact that millions of people still do not have access to clean drinking water and are forced to do toilets in the open.
Why it doesn’t shock the conscience of the Judges by the fact that millions of Childrens and women are trafficked for prostitution and the State fondly call them Commercial Sex Workers {CSWs}. Do these CSWs have the requisite sanction of Constitution of India?
The Judges merely talking tough and doing nothing. Rather they have assumed the role of commentator than adjudicator, at least when mighty State is involved.
Is it sufficed that Orders are passed on deaf ears of the State, without being follow up of their implementation. Doesn’t the Judiciary has powers to monitor implementation of Orders passed by itself. And the State leadership get away Judges momentary fury with cultivated tradition of strictures and criticism, caution and advice and are merely branded callous or worse.
The sustained bleeding of the section of the People’s inhumane sufferings has failed to impress the Judges. The Judges are not seen alarmed or panicked over the state of affairs.
It can be said with near certainty that Judges of India have hardly employed the Landmark Judgment of Hon. Justice Krishna Iyer in Ratlam Municipality Vs Vardichand (1980) in which the Hon’ble Court fully acknowledging the magnitude of corruption and colossal waste of public money in the State Administration, observed that the State cannot plead paucity of funds for its inability to ensure basic necessities of life. The Court further Said, "regardless of the Cash in their coffers, even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions; Otherwise a Statutory body or Govt agency may legally defy duties under the Law by urging in self defence a self created bankruptcy or perverted expenditure budget. That cannot be."
It is pertinent to mention words of wisdom by some of the finest Jurists we have in recent times on the sensitive issue of Contempt of Courts.
The Hon. Supreme Court, thru Justice Krishna Iyer, did try to restrain the use of Contempt of Court Act 1971 when it stated in Ram Dayal Markarha V State of MP AIR 1978 SC 922 that the path of Justice is not strewn with roses and Justice being not a cloistered virtue, it must be allowed to suffer the scrutiny, even though outspoken comments of ordinary man.
Hon’ble Justice Markandey Katju has said and I quote, “In a Democracy the People should have the right to criticize Judges. The Purpose of the contempt power should not be to uphold the Majesty and Dignity of the Court but only to enable it to function.
As observed by Lord Denning, one of the finest Judge of England “Let me say at once that we will never use contempt Jurisdiction as a means to uphold our own dignity. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor we resent it. For there is something far important at stake. It is freedom of speech itself”.
The Contempt of the Court or Scandalizing the Judges is a whim that is fancy. This is an illegality for an undefined cause. It is simply Judge’s vandalism. Overzealous defenders of judicial dignity only serve to erode its credibility.
Satyamev Jayate as we call it and which is one of the foundation of our Life and it is fallacy to presume that Truth came to be a valid defence only after the amendment so brought then.
Yet a Constitution, no matter how well conceived, can only create institution on papers. Breathing life into them is up to the men occupying seat of power.
The ultimate judicial dignity lies in People getting “Preamble Justice”, or else the Judges may seek illusory, cosmetic and customary dignity. The Judicial dignity shall occasion, by default, where the offender of law will stop laughing at the premise of threat of legal action.
With great hope of accountability and wisdom in my Guardians.
Sandeep Jalan
Advocate
Mumbai.
Contempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Contempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Section 5 of the Contempt of the Courts Act, 1971 – a
Person shall not be guilty of Contempt of the Court for publishing any fair
comment on the merits of the case which has heard and finally decided.
The Proceedings should not be initiated lightly – Pradip
Kumar Biswas (Dr) versus Subrata Das – (2004) 4 SCC 573
Fair comments even if outspoken, but made without any
malice and without attempting to impair the administration of justice and made
in good faith in proper language, do not attract any punishment for contempt of
Court – AIR 1988 SC 3299.
There can be no manner of
doubt that in this country the principles which should govern cases of the
present kind are now fully settled by the previous decisions of this Court. we
may re; state the result of the discussion of the above cases on this head of
contempt which is by no means exhaustive.
(1 ) It will not be right to
say that committals for contempt for scandalizing the court have become
obsolete.
(2) The summary jurisdiction by
way of contempt must be exercised with great care and caution and only when its
exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to
express fair, reasonable and legitimate criticism of any act or conduct of a
judge in his judicial capacity or even to make a proper and fair comment on any
decision given by him because "justice is not a cloistered virtue and she must
be allowed to suffer the scrutiny and respectful, even though outspoken,
comments of ordinary men".
(4) A distinction must be made
between .a mere libel or defamation of a judge and what amounts to a contempt of
the court. The test in each case would be whether the impugned publication is a
mere defamatory attack on the judge or whether it is calculated to interfere
with the due course of justice or the proper administration of law by his court.
It is only in the latter case that it wilt be punishable as Contempt. (1) [1959]
S.C.R. 1367. (2) [1953] S.C.R. 1169. 792
(5 ) Alternatively the test
will be whether the wrong is done to the judge personally or it is done to the
public. To borrow from the language of Mukherjea, J. (as he then was) (Brahma
Prakash Sharma's case)(1) the publication of a disparaging statement will be an
injury to the public if it tends to create an apprehension in the minds of the
people regarding the integrity, ability or fairness of the judge or to deter
actual and prospective litigants from placing complete reliance upon the court's
administration of justice or if it is likely to cause embarrassment in the mind
of the judge himself in the discharge of his judicial duties.
The Hon’ble Supreme court in the case of Muthu Karuppan
versus Parithi, in Para 9, observed as – The contempt proceedings being quasi
criminal in nature, burden and standard of proof is the same as required in
criminal cases. The charges have to be framed as per the statutory rules framed
for the purpose and proved beyond reasonable doubt keeping in mind that the
alleged contemnor is entitled to the benefit of doubt. Law does not permit
imposing any punishment in contempt proceedings on mere probabilities; equally,
the court cannot punish the alleged contemnor without any foundation merely on
conjectures and surmises. As observed above, the contempt proceeding being quasi
criminal in nature require strict adherence to the procedure prescribed under
the rules applicable in such proceedings. [AIR 2011 SC 1645]
....Courtesy. Ad Sandeep Jalan
Criminal Contempt Jurisdiction of the CourtContempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Contempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Section 5 of the Contempt of the Courts Act, 1971 – a
Person shall not be guilty of Contempt of the Court for publishing any fair
comment on the merits of the case which has heard and finally decided.
The Proceedings should not be initiated lightly – Pradip
Kumar Biswas (Dr) versus Subrata Das – (2004) 4 SCC 573
Fair comments even if outspoken, but made without any
malice and without attempting to impair the administration of justice and made
in good faith in proper language, do not attract any punishment for contempt of
Court – AIR 1988 SC 3299.
There can be no manner of
doubt that in this country the principles which should govern cases of the
present kind are now fully settled by the previous decisions of this Court. we
may re; state the result of the discussion of the above cases on this head of
contempt which is by no means exhaustive.
(1 ) It will not be right to
say that committals for contempt for scandalizing the court have become
obsolete.
(2) The summary jurisdiction by
way of contempt must be exercised with great care and caution and only when its
exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to
express fair, reasonable and legitimate criticism of any act or conduct of a
judge in his judicial capacity or even to make a proper and fair comment on any
decision given by him because "justice is not a cloistered virtue and she must
be allowed to suffer the scrutiny and respectful, even though outspoken,
comments of ordinary men".
(4) A distinction must be made
between .a mere libel or defamation of a judge and what amounts to a contempt of
the court. The test in each case would be whether the impugned publication is a
mere defamatory attack on the judge or whether it is calculated to interfere
with the due course of justice or the proper administration of law by his court.
It is only in the latter case that it wilt be punishable as Contempt. (1) [1959]
S.C.R. 1367. (2) [1953] S.C.R. 1169. 792
(5 ) Alternatively the test
will be whether the wrong is done to the judge personally or it is done to the
public. To borrow from the language of Mukherjea, J. (as he then was) (Brahma
Prakash Sharma's case)(1) the publication of a disparaging statement will be an
injury to the public if it tends to create an apprehension in the minds of the
people regarding the integrity, ability or fairness of the judge or to deter
actual and prospective litigants from placing complete reliance upon the court's
administration of justice or if it is likely to cause embarrassment in the mind
of the judge himself in the discharge of his judicial duties.
The Hon’ble Supreme court in the case of Muthu Karuppan
versus Parithi, in Para 9, observed as – The contempt proceedings being quasi
criminal in nature, burden and standard of proof is the same as required in
criminal cases. The charges have to be framed as per the statutory rules framed
for the purpose and proved beyond reasonable doubt keeping in mind that the
alleged contemnor is entitled to the benefit of doubt. Law does not permit
imposing any punishment in contempt proceedings on mere probabilities; equally,
the court cannot punish the alleged contemnor without any foundation merely on
conjectures and surmises. As observed above, the contempt proceeding being quasi
criminal in nature require strict adherence to the procedure prescribed under
the rules applicable in such proceedings. [AIR 2011 SC 1645]
Wednesday, August 1, 2012
Will samll causes court ever punish ...
advocates / litigants who abuse process of law , file misleading applications to delay and harrass and waste precious time of Hon. Courts???
https://docs.google.com/file/d/0B6hXZkfsIpLQZWE2Zjk0NjItZmQ3NS00ODFiLThlYjQtMjI4ZWY2ZmFlNDdk/edit?authkey=CKuY_rUN
https://docs.google.com/file/d/0B6hXZkfsIpLQZWE2Zjk0NjItZmQ3NS00ODFiLThlYjQtMjI4ZWY2ZmFlNDdk/edit?authkey=CKuY_rUN
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