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professional_ethics:misconduct-and-contempt

Professional Misconduct and Contempt of Courts

A very high standard of professional ethics is expected of a lawyer. What may still be proper for other may still be improper for a counsel. The expectation is of ethical behavior from a lawyer who is a privilege member of the community and expected to be a gentleman.

The contempt of court may be said to have been committed by any conduct that tends to bring the authority and the administration of the laws into disrespect or disregard or to interference with or prejudice parties, litigants, their witnesses during the litigation.

The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court.

A member of legal profession which is a noble one is expected to maintain a standard in dignified and determined manner. The standard required to be maintained by the member of legal profession must be commensurate with the nobility thereof. A lawyer is obligated to observe those norms which make him worthy of the confidence of the community in him as an officer of the court.

Lawyers’s conduct should be a model for others

The legal profession is different from other professions in that what the lawyers do, affects not only an individual, but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour.

It must not be forgotten that the legal profession has always been held in high esteems and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practiced it with dignity, deference and devotion. If the profession is to survive, the judicial system has to vitalised. No service will be too small in making the system efficient, effective and credible.1)

Civil Contempt

Under Section 2 (b) of the Contempt of Courts Act of 1971, civil contempt has been defined as “willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or willful breach of an undertaking given to a court.”

The following are examples of conduct which has been held to be a civil contempt of court—

  1. Failure to carry out an undertaking given to the court.
  2. Subject to certain restrictions, disobedience to a judgment or order for the payment of money within a specified period.
  3. Disobedience to an order for the payment of money into court in time.
  4. Failing to obey a judgment or order to do or abstain from doing an act within a specified time.
  5. Failure to obey an order for interrogatories, inspection or discovery.

Willful and deliberate violation

Every infraction of the court’s order does not amount to contempt of court. It is only a willful and deliberate violation of the court’s order and contumacious conduct on the part of the contemner which is to be condemned in contempt proceeding. In consideration of this question, notice should also be taken of section 13 of the Contempt of Courts Act, 1971, which provides that no court shall impose a sentence under this Act for contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends to substantially interfere with the due course of justice. A willful and deliberate violation of the order of court must be shown to interfere with the due course of justice before such conduct can be punished for contempt.2)

When there is failure to comply with or carry out an order or direction of the Court made in favour of a party, it would amount to contempt. The person in whose favour such an order or direction is issued can move the Court initiating the proceedings for contempt against the alleged contemner.3)

Willful breach of an undertaking

If there is the breach of an undertaking given to the court and the breach is willful, the same would amount to contempt of court. The reason for making the breach of an undertaking given to a court punishable is that the contemner in such cases obtains some benefit for himself on the basis of false representation. Thus, he plays a serious fraud on the court and in this way obstructs the course of justice and brings into disrepute the judicial institution.4)

If the party gives undertaking to the court on the basis of certain implications or assumptions which are false to his knowledge, he will be guilty of misconduct amounting to contempt. An undertaking may be given by the party himself or by some other person on his behalf provided in the later case; the person giving the undertaking has the authority to give such undertaking. In this way, an advocate on behalf of his client may give an undertaking, provided he had authority on behalf of his client to give such undertaking.

When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the court by or on behalf of a party to civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circumstances may be in the form of a direction to the contemner to purge the contempt or a sentence of imprisonment or fine or all of them.5)

Criminal Contempt

Under section 2 (c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

(a) Scandalises or tends to scandalize, or lowers or tends to lower the authority of, any court; or

(b) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding; or

(c) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effective and orderly administration of justice. The court has the duty of protecting the interest of the community in the due administration of justice, and so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the court against insult or injury, but, to protect and to vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with”.6)

Lowering of dignity and authority

Tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemner which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.

What amounts to publication

The term ‘publication’ has been given a very wide meaning. The publication may be by words, whether spoken or written, or by signs or by visible representation or otherwise of any matter. Thus, if there is any matter published in some news paper or broadcasted through radio, television or cinema slide and the matter is such as would scandalize or tends to scandalize the authority of the court, the same would be punishable as criminal contempt. If there is the statement in a news item published in the newspaper that justice may be bought with money that would amount to criminal contempt.7)

Scandalizing the court

Interpreting the meaning of the word ‘scandalizing’, Hon’ble Supreme Court has held in DC Saxena vs Hon’ble Chief Justice of India8) that it is an expression of scurrilous attack on the majesty of justice which is calculated to undermine the authority of the courts and public confidence in the administration of justice. The malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination. If the people’s allegiance to the law is so fundamentally shaken, it is the most vital and most dangerous obstruction of justice calling for urgent action.

Scandalizing the court, therefore, would mean hostile criticism of judges as judges or judiciary. Any personal attack upon a judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the judge as a judge brings the court or judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice. It would, therefore, be scandalizing the judge as a judge, in other words, imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court and would be contempt of the court.

About the Author

Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1)
In Re: Sanjeev Datta, 1995 Cri LJ 2910
2)
HS Butalia vs Shbhas Saksena, 1974 Cr LJ 828 Cal
3)
Ashish Kumar vs Mohammed Ali, 2010 ACJ 14; 2009 (4) Kar LJ 652
4)
Babu Ram Gupta vs Sudhir Bhasin, AIR 1979 SC 1528
5)
Noorali Babul Thanewala vs KMM Shetty, AIR 1990 SC 464; (1990) 1 SCC 259
6)
Delhi Judicial Service Association vs State of Gujarat, 1991 AIR SWC 2419
7)
State vs Badri Bhatia, (1994) Western Law Cases 349 Raj
8)
AIR 1996 SC 2481: 1996 AIR SCW 3082: 1996 Cri LJ 3274: (1996) 5 SCC 216


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Created on 2021/02/14 11:35 by LawPage • Last modified on 2021/02/14 11:35 by LawPage