Friday, May 17, 2013

Legal brain storming

Legal brain storming

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
# 094155-34526


  1. You are absolutely right. But unfortunately in our courts yes can mean no and no can mean yes. In one case the then president of the kerala state consumer disputes redressal commission, a former judge of the kerala hc, filed a false affidavit in the kerala hc. The court made a reference to it in the order but took no cognisance of the perjury! In fact, talking of contempt of court, I strongly believe that it should have any relevance only in cases of disobedience of court orders and not for criticism by the public. Unfortunately, in reality it is the other way around that happens. The courts are not taking any action on those public servants who flout court orders but brandish this sword of Damocles whenever a citizen criticises it! We have seen how courts have encouraged sting operations by media on other public servants and how it has reacted when such operations have been conducted against judges!

  2. I am also a volunteer and file PILs in PB & HR High Court and plead as Petitioner in Person. I do feel that there is some anomaly in this order but in Indian Legal System, we have to gain the judgement from the Court for the confirmation and it depends upon our argument as well as on prudence of Hon’ble Justice/s that if we can convince them. The Petitioner always considers he is correct and Court always apply mind to find if it is so. So we should honour and have to honour the Judgment what so ever courts deliver.

    But it does not mean that we should not struggle to bring out the best. Law is flexible and there are many a routes to reach at a goal. So you can file appeals as per Law and take the matter to Appellate courts where you can argue the matter more vigorously to get a verdict in your favour.

    You are absolutely correct that by defying the directions, (may be procedural), is a COC. But let the Court agree to it. I will also file similar COCP here and will try to find what the PB & HR HC finds out.

  3. Actually a revolutionary change is required in judiciary , i am facing same type of difficulty in barabanki court where statute has been flouted with impunity , i am pleading a case party in person ,It is a case ..... Vrs State . P.P is there on opposite side . He is supposed to lead the trial , but the opposite party engaged a pvt counsel and he take adjournment every time . Though law says CrPC 301(2) that pvt counsel can only assist to PP .
    judge grant adjournment librally