0704 : Contempt of Court Case Presentation : In Re Arundhati Roy, 2002 | Contempt of Court | Professional Ethics

Arundhati Roy Vs Unknown

5 min read

 July 19, 2021

By Krishna Das

Petitioner- Arundhati Roy

 

Defendant- Unknown

 

Statutes Referred-

The Constitution of India.

Contempt of Court Act

 

Cases Referred:

Re: Vinay Chandra Mishra AIR 1995 SC 2348

Re: Harijai Singh & Anr. 1996 (6) SCC 466

 

Facts of the Case

1.     This case is a Suo-moto contempt petition which is initiated by the court itself against the respondent, named Arundhati Roy, a prize winning author.

2.     During the period of writ petition of Narmada Bachao Andolan, the court issued some environmental damages and have also suggested for the displacement of the communities that were living nearby due to the development activities of the dam or the reservoir on the river Narmada. According to the order of the supreme court, the height of the dam should be increased, but the respondant criticized this decision of the court and subsequently started a protest in front of the fates of the supreme court by the andolan members and the respondant herself. This was led on the basis of the complaint filed by the police. But during the proceedings, all the respondant denied all the allegations regarding the inappropriate banners and slogans. And then with denial, the respondants were also criticized the court for the proceedings. Arundhati roy has also said that, the judges were so busy, and with that the chief justice of our country has also refused to allow a sitting judge to head the judicial enquiry into the tehelka scandal instead that the matter involves national security and corruption in the highest places. Yet they have also questioned the policies of the government and severely criticized the recent judgement of the supreme court, after all this infact the local has also not reacted to this matter. According to arundhati’s statement, supreme court was doing all this to save their own reputation and credibility to considerable harm.

3.    On the basis of the above allegations, the suo-moto proceedings were initiated against the respondent for questioning or imputing the motives of the court. Then in her reply affidavit, she stressed on her continuous dissent against the decision of the court. Then she believed that this matter is not only about the court’s judgement, its about her right to express her opinions as a citizens as well as a writer also. As a writer, she believes that it is a responsibility for her to raise voice against these cases and claim for justice.

 

Issue Raised

 

· In this case, the issue was about the court’s decision, that the height of the reservoir dam should be increased and for a time being, due to the development purposes. The nearby residences should moved from there which was not acceptable by the respondant and claimed that this decision was not appropriate and can make those families homeless and was also seeking claim for the right to express one’s personal opinions that is freedom of speech.

· Secondly, she also questioned the judiciary for their malfunctioned system and also alleged that the top most personnels were corrupted and not doing their job properly.

· Thirdly, seeking right to personal opinion does not mean that the respondant or any party have the right to condemn the judicial system or the decisions by the judiciary.

 

Parties Contentions-

 

Court-

1.   The court has stated all the allegations false, with that they has also said that the banners and the slogans were inappropriate for the masses and this will lead to the misrepresentation in front of the masses.

2.  Secondly, conducting the protests in the way that it was held by the respondants was totally a wrongful conduct and illegal approach in its nature.

3.  Thirdly, every individual should follow the basic integrity to maintain social relation and dignity of the apex court.

 

Respondant-

 

1.   Arundhati roy- the respondant who is also an award winning author stated that she should be free to express her opinion under right to express an individual’s opinion or we can say that freedom of expression.

2.     Secondly, the decision passed by the apex court was inappropriate because in the name of development, the nearby residences were ordered to replace from that area, which will affect those poor families.

 

Judgement

 

1.  The court stated that freedom of speech and expression does guaranteed by the constitution of India but they are followed with some reasonable restrictions that were imposed by law, which majorly includes that the basic dignity and integrity of the court and judiciary should be maintained.

2.     Then the respondants’s argument was considered as irrelevant and the issue was arised that whether truth could be pleaded as defense to contempt or not. As the reply affidavit was the main contemptuous part of the whole matter as it contains the most wild allegations against the court and the whole judiciary system.

3.   So the court considered that the whole affidavit will not be considered for contempt accept the allegating part of the affidavit as the allegations were questioning the integrity of the court and was also harming the reputation of the apex court and it’s judgement. As according to the court, the criticism of the court or lowering the reputation of the court will not be acceptable by the system. And if any individual does so, being having the knowledge that the comments made were irrelevant, in that case the individual is responsible for the honour harm of the reowned institution.

4.   So that the court considered that the statements made by the respondant was totally a wrongful contention and the petition will be considered as absurd, despicable, entirely unsubstantiated petition. As the case was also concerned with national security and corruption in the highest places. It was also considered as intentional criticism.

5.   So, accordingly the court found that the respondant is guilty of criminal contempt and because of that she was sentenced to one day imprisonment and was also imposed with Rs. 2000 fine with the proviso stating that if she fails to pay the amount of fine, in that case she would be imprisoned for 3 months.

 

Rule of Law

 

The basic rule of law that was applied here was that the contempt of court was not be admissible by the apex court if somebody dishonour the integrity of the apex court.

 

Conclusion

 

    To conclude the above case, the court has taken the appropriate decision as downgrading the reputation of an apex court is not considered as lawful activity and will not be act as a defense in the court of law. 

    Whether an individual has personal rights but every personal right comes with some reasonable restriction that were mandatorily imposed by law.

    Hence, the respondent has made mis-statements which leads to degrading the dignity and integrity of the court and the judiciary.

References 

India Kanoon In Re: Arundhati Roy vs Unknown on 6 March, 2002

Youtube Video https://www.youtube.com/watch?v=us7YPxVi57A  by Aasim Yezdani

Reference 18299.pdf - Supreme Court of India

Quick Minute Revision : Advocate’s Duty Towards the Court

 Advocate’s Duty Towards the Court

1. Act in a dignified manner.

During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner. He should at all times conduct himself with self-respect. However, whenever there is a proper ground for serious complaint against a judicial officer, the advocate has a right and duty to submit his grievance to proper authorities.

2. Respect the court.

An advocate should always show respect towards the court. An advocate has to bear in mind that the dignity and respect maintained towards the judicial office is essential for the survival of a free community.

3. Not communicate in private.

An advocate should not communicate in private to a judge with regard to any matter pending before the judge or any other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe, etc.

4. Refuse to act in an illegal manner towards the opposition.

An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his client from acting in any illegal, improper manner or use unfair practices in any mater towards the judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means.

An advocate shall refuse to represent any client who insists on using unfair or improper means. An advocate shall excise his own judgment in such matters. He shall not blindly follow the instructions of the client. He shall be dignified in use of his language in correspondence and during arguments in court. He shall not scandalously damage the reputation of the parties on false grounds during pleadings. He shall not use unparliamentary language during arguments in the court.

6. Appear in proper dress code.

An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules and his appearance should always be presentable.

7. Refuse to appear in front of relations.

An advocate should not enter an appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as the father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law, or sister-in-law.

8. Not to wear bands or gowns in public places.

An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.

9. Not represent establishments of which he is a member.

An advocate should not appear in or before any judicial authority, for or against any establishment if he is a member of the management of the establishment. This rule does not apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council, Incorporated Law Society, or a Bar Association.

10. Not appear in matters of pecuniary interest.

An advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for the client.

An advocate should not stand as a surety or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.

---

Advocate’s Duty Towards the Client

1. Bound to accept briefs.

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practice. He should levy fees that are at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service.

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client.

3. Not appear in matters where he himself is a witness.

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe that in due course of events he will be a witness, then he should not continue to appear for the client. He should retire from the case without jeopardizing his client’s interests.

4. Full and frank disclosure to the client.

An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.

5. Uphold the interest of the client.

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.

6. Not suppress material or evidence.

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that does not lead to the conviction of the innocent. An advocate shall by no means suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between the client and himself.

An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.

10. Not charge depending on success of matters.

An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not charge for his services as a percentage of the amount or property received after the success of the matter.

11. Not receive interest in actionable claim.

An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares, and debentures of government securities, or to any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.

12. Not bid or purchase property arising of legal proceeding.

An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any property on behalf of the client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding.

An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer (either in his own name or in any other name for his own benefit or for the benefit of any other person), any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way professionally engaged.

14. Not adjust fees against personal liability.

An advocate should not adjust fee payable to him by his client against his own personal liability to the client, which does not arise in the course of his employment as an advocate.

15. An advocate should not misuse or take advantage of the confidence reposed in him by his client.

16. Keep proper accounts.

An advocate should always keep accounts of the clients’ money entrusted to him. The accounts should show the amounts received from the client or on his behalf. The account should show along with the expenses incurred for him and the deductions made on account of fees with respective dates and all other necessary particulars.

17. Divert money from accounts.

An advocate should mention in his accounts whether any monies received by him from the client are on account of fees or expenses during the course of any proceeding or opinion. He shall not divert any part of the amounts received for expenses as fees without written instruction from the client.

18. Intimate the client on amounts.

Where any amount is received or given to him on behalf of his client, the advocate must without any delay intimate the client of the fact of such receipt.

19. Adjust fees after termination of proceedings.

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him from the account of the client. The balance in the account can be the amount paid by the client or an amount that has come in that proceeding. Any amount left after the deduction of the fees and expenses from the account must be returned to the client.

20. Provide copy of accounts.

An advocate must provide the client with a copy of the client’s account maintained by him on demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.

22. Not lend money to his client.

An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such a client. An advocate cannot be held guilty for a breach of this rule, if in the course of a pending suit or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or proceeding.

23. Not appear for opposite parties.

An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter.

---

Advocate’s Duty Towards the Opponents

1. Not to negotiate directly with opposing party.

An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties.

2. Carry out legitimate promises made.

An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.

---

Advocate’s Duty Towards Fellow Advocates

1. Not advertise or solicit work.

An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments, or producing his photographs to be published in connection with cases in which he has been engaged or concerned.

2. Sign-board and Name-plate.

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.

3. Not promote unauthorised practice of law.

An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.

5. Consent of fellow advocate to appear.

An advocate should not appear in any matter where another advocate has filed a vakalt or memo for the same party. However, the advocate can take the consent of the other advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such an application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.

Source:     Bar Council of India 

               Witinglaw.com - advocates duties

As an advocate, you will find this useful: Important Case Nomenclatures Used in Indian Courts

 

Quick Minute Revision : Profession Misconduct Under Advocates Act 1961

 Professional Misconduct Under The Advocates Act, 1961

July 24, 2016

In this blog post, Sreeraj K.V., the student of Government Law College, Ernakulam, Kerala, writes about Professional misconduct under the Advocates Act, 1961. The blog post covers areas like the definition of the term misconduct, provisions under the Advocates Act as well as various important cases dealing with the issue of misconduct.

A lawyer’s profession is meant to be a divine or sacred profession by all means. In every profession, there are certain professional ethics that need to be followed by every person who is into such a profession. But there is the fact that professional misconduct is a common aspect, not only in other professions but also in advocacy also. In simple terms, it means certain acts done by the persons which seem to be unfit for the profession as well as which are against certain ethics in this field. The term has been clearly defined in Black’s Dictionary as, the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, improper or wrong behavior. Its synonyms are a misdemeanour, impropriety, mismanagement, offense, but not negligence or carelessness.[1] From the definition, it is now clear that the act of professional misconduct is done purely with an intention of getting unlawful gains. The Advocates Act, 1961 and the Indian Bar Council play a vital role in providing rules and guidelines regarding the working, code of conduct and such other matters concerning lawyers and advocates in India.

The attributes of a profession are:

1.     Existence of a body of specialized knowledge or techniques.

2.     Formalized method of acquiring training and experience.

3.     Establishment of a representative organization with professionalism as its goal.

4.     Formation of ethical codes for the guidance of conduct.

5.     Charging of fees based on services but with due regards to the priority of service over the desire of monetary rewards.

click above

Misconduct means any acts which are unlawful in nature even though they are not inherently wrongful. Before the Advocates Act, 1961, we had the Legal Practitioners Act, 1879. There is no definition given for the term ‘misconduct’ in the Act, but the term ‘unprofessional conduct’ is being used in the Act. Some of the instances of professional misconduct are as follows:

·       Dereliction of duty

·       Professional negligence

·       Misappropriation

·       Changing sides

·       Contempt of court and improper behaviour before a Magistrate

·       Furnishing false information

·       Giving improper advice

·       Misleading the clients in court

·       Not speaking the truth

·       Disowning allegiance to the court

·       Moving application without informing that a similar application has been rejected by another authority

·       Suggesting to bribe the court officials

·       Forcing the prosecution witness not to say the truth.[2]

Advocates Act, 1961

The provisions of Section 35 of the Advocates Act deal with professional misconduct of lawyers and advocates in India, which read as:

A person is found guilty of professional misconduct; it shall refer the case to a disciplinary committee, shall fix a date of hearing and issue a show cause notice to the Advocate and the Advocate General of the State. The disciplinary committee of the State Bar Council, after being heard of both the parties, may:

1.     Dismiss the complaint, or where the proceedings were initiated at the instance of the State Bar Council, directs that proceedings be filed;

2.     Reprimand the advocate;

3.     Suspend the advocate from practice for such a period as it deems fit;

4.     Remove the name of an advocate from the state roll of advocates.[3]

Misconduct is of infinite variety; this expression must be understood in a broad meaning, such that it extends the meaning under natural law, and there is no justification for restricting their natural meaning. Section 49 of the Advocate Act empowers the Bar Council of India to frame rules and standards of professional misconduct. Under the Act, no person has a right to make advertisement or soliciting; it is against advocate’s code of ethics. He is also not entitled to any advertisement through circulars, personal communications or interviews, he is not entitled to demand fees for training and to use name/service for unauthorized purposes.[4]

Contempt of Court as professional misconduct

Contempt of court may be defined as an offense of being disobedient or disrespectful towards the court or its officers in the form of certain behaviour that defies authority, justice, and dignity of the court.[5] In various cases involving contempt of court, the court held that if any advocate or legal practitioner is found guilty of the act of contempt of court, he/she may be imprisoned for six years and may be suspended from practicing as an advocate  (In re Vinay Chandra Mishra).[6]The court also held that license of the advocate to practice a legal profession might be canceled by the Supreme Court or High Court in the exercise of the contempt jurisdiction.

There are many other landmark judgments regarding the cases involving professional misconduct of the advocates. In the case of V.C. Rangadurai v. D.Gopalan[7], the court looked into the matter of professional misconduct in such a way that the decision was made in a humanitarian manner, considering the future of the accused in this case. The court held that “even so justice has a correctional edge, a socially useful function, especially if the delinquent is too old to be pardoned and too young to be disbarred. Therefore, a curative, not cruel punishment has to be delivered in the social setting of the legal profession”. The court then gave the decision in such a way that it looked at each and every aspect concerning the case as well as the parties concerned. It adopted a deterrent was of justice mechanism so that the accused person is awarded certain punishments but also provided a warning towards such other people who intend to commit acts of a similar nature. The judgment turned out to be a landmark in cases concerning professional misconduct as it delivered an effective judgment and but did not jeopardize the future of the accused person. In various other cases like J.S. Jadhav v. Musthafa Haji Muhammed Yusuf[8], the court delivered the decision in such a way that it created a notion in the minds of the wrongdoers that offenders will be punished accordingly.

Conclusion

From the analysis of various cases and certain facts and circumstances, it will be clear that unlike any other profession, advocacy is regarded as a noble profession and professional ethics must be maintained. Courts have dealt with various cases of professional misconduct wherein attempt of murder by the advocate towards his client have also been reported. Hence, there must be interference from concerned authorities so that persons with a criminal background are kept away from this profession. Even though there are guidelines dealing with the social background of the person enrolling in this profession, i.e. the person enrolling must be free from any criminal cases, it does not prove that the person has a criminal nature of his own. So Bar Council can implement certain rules and regulation so that the conduct of the person who is showing criminal behaviour can be controlled strict guidelines ensuring that the person no longer acts unlawfully against his profession. There must be various career guidance and development programs conducted by the Bar Council immediately after enrolment so that new legal professionals they will be aware of the do’s and don’t of this profession and there will be a better group of advocates in the coming decades.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Footnotes:

[1] Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-by-lawyers-in-india-1621-1.html

[2] Retrieved on: http://www.legalservicesindia.com/article/print.php?art_id=1665

[3] Retrieved on: https://indiankanoon.org/doc/1460739/

[4] Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-in-india-1665-1.html

[5] Retrieved on: https://en.wikipedia.org/wiki/Contempt_of_court

[6] In Re: Vinay Chandra Mishra AIR 1995 SC 2348.

   Retrieved on: http://www.legalserviceindia.com/articles/sc_t.htm

[7] V.C. Rangadurai v. D. Gopalan and ors 1979 AIR 281

[8] J.S Jadhav v. Musthafa Haji Muhammed Yusuf and ors 1993 AIR 1535