Re: [rti4empowerment] Legal brain storming- Ur opinion please

Dear Amitabh,

3 days before the next date of hearing, move an application stating
that no reply has been received, so it may either be clarified that no
further opportunity shall be given OR that costs shall be imposed on
OP to file his reply. (its there somewhere in the CPC - ask yr
counsel).

Contempt jurisdiction cannot be invoked so lightly.

Sarbajit

On 5/17/13, Amitabh Thakur <amitabhth@yahoo.com> 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.
>
>
>
> http://amitabhandnutan.blogspot.in/2013/05/blog-post_17.html
>
> http://amitabhandnutan.blogspot.in/2013/05/legal-brain-storming.html
>
> Amitabh Thakur
> Lucknow
> # 094155-34526

--
You received this message because you are subscribed to the Google Groups "INDIA RTI for empowerment" group.
To unsubscribe from this group and stop receiving emails from it, send an email to rti4empowerment+unsubscribe@googlegroups.com.
For more options, visit https://groups.google.com/groups/opt_out.