Sunday, August 16, 2009

R. K. Anand Contd: Guest Post by Kalyani Ramnath (NLS'09)

On the issue of lawyers as contemnors

Case law has dealt with situations where the contemnor as a lawyer has demanded ‘an answer to [her] question’ and considered to have obstructed the functioning of the Court.[1] In the case of Court on its own motion v. State and Others,[2] the Delhi High Court held the lawyers in contempt for colluding with each other to determine the result of the case. A lawyer who wrote out a curse for each of the judges who refused to rule in his favour,[3] suggestions that ‘money rules the roost’ even when it comes to the judiciary,[4] slapping the presiding judge in open court,[5] saying that the public has lost trust in law and justice[6] and declaring that he would never bow before the court again[7] have been considered contempt of court. Omitting the name of the judge or the proceeding would not absolve the contemnor of guilt.[8] The defence used in such cases is sometimes is that they were performing their duties as a ‘fearless member of the Bar’.[9] Whether it be in the newspaper or at a press conference, several cases of contempt have been sustained against lawyers.[10] The reasoning employed here has been that even here, it must be a fair and unbiased criticism, made in a ‘detached’ manner. Scholars have suggested that in such cases, lawyer speech outside the courtroom should be given higher constitutional protection as strictly speaking, it is not a court but a public place where all citizens are entitled to free speech and expression. The test that could be used in this regard is that used by Justice Frankfurter in Re Snyder.[11] Where the words are spoken must be so closely enough related to the business of resolving disputes that it should not be deemed an open forum for expressive activities, higher constitutional protections will not apply. Hence, in the Indian context, in such cases, it may be argued that the more general restrictions on free speech as contained in Article 19(2) of the Constitution should apply. In such cases, lawyers ought to be considered citizens more than as officers of the court; this should not be considered a betrayal of the system. This will however, involve the removal of ‘contempt of court’ as a standalone restriction on free speech in Article 19(2).

[1] In Re Smt. Sadhna Upadhyaya, Advocate MANU/UP/0722/2008.

[2] (2008) 151 DLT 695.

[3] Court on its own motion v. Gulshan Bajwa (2007) 141 DLT 111.

[4] Raghuveer Singh v. Shiv Kumar Swami (unreported)

[5] Pritam Pal v. High Court of Madhya Pradesh AIR 1992 SC 902.

[6] Ajay Kumar Pandey v. State (1999) 1 UJ 151.

[7] L.D. Jaikwal v. State of U.P. MANU/SC/0077/1984.

[8] Harish v. Bal Thackeray (1997) 99 Bom L.R. 455.

[9] Re Vinay Chandra Mishra MANU/SC/0471/1995.

[10] In Re: Lalit Kalita (2008) 1 GLT 800; Perspective Publications (P) Ltd. v. State of Maharashtra MANU/SC/0302/1968; Bathina Ramakrishna Reddy v. State of Madras MANU/SC/0074/1952.

[11] 472 U. S. 634 (1985).

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