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What constitutes Criminal Contempt Of the Court


Whereas Contempt Petition was filed by Senior Counsel Harish Salve against his professional brother Senior Counsel Prashant Bhushan, in the Supreme Court, for his alleged contemptuous article against Supreme Court Judges in Tehelka Publication, as I see the Petition is misconceived, inasmuch as, the alleged contemptuous article though originating from Prashant Bhushan, but it is the Editors of Tehelka who took a final call and decided to publish that alleged contemptuous article. (Emphasis added)

It is the act of publication of that alleged contemptuous article which is imagined as prejudiced the minds of people towards dignity of apex court of the country. Had Tehelka Editors would have decided otherwise, no contempt can be made out against Prashant Bhushan notwithstanding the alleged article yet in being. (Emphasis added)

However, Prashant Bhushan could have been alleged of contempt had the medium of publication to the people at large were also to originate from Prashant Bhushan.

Of course, without prejudice to Tehelka right to defend, in the circumstances, it feels that, it is the Editors of Tehelka who can be alleged to have committed contempt of court by publishing that “contemptuous article”.

I take the liberty to cite here one US landmark case popularly known as Pentagon papers case. [New York Times v United States 403 US 713 (1971)] This what US court said- that the constitution bars any restraint upon newspaper publication, regardless of the nature of material published, except under special circumstances where it would result in direct, immediate and irreparable damage to the nation.

Very recently, it was reported that Chhatisgarh govt was contemplating action against Arundhati Roy for her alleged glorifying article about Maosists in Outlook magazine. But, isn't, it is the Outlook who has glorified, if at all glorified.

When come to law of Criminal contempt of the court, wherein a Citizenry, having acted in a manner, is exposed to personal interpretation of every second Judge, isnt it is desirable that a Citizenry is told with reasonable certainty beforehand that his 'this' act will constitute criminal contempt of the court.

Today, the scene is, that my alleged act is an sure offence for one Judge and none for second Judge. This is not good. The Court must find the occasion to fix the offence. "lowered the dignity"..... "tarnished image"....... concept are fundamentally personal opinion of every individual.... where the saying goes as- we do not see things as they are, but we see things as we are"............ Therefore, a greatest degree of certainty must be supplied to every law and in particularly to a penal law which seek to imprison a man having committed that offence.

yet an act which is so scandalous in nature & content which every mind of ordinary prudence will regard it unworthy and uncalled for, may be regarded as having element of lowering the dignity... tarnishing the image.

When Judges says that act of Mr.X has lowered and tarnished the image of highest judiciary....... it is of LEAST / NO importance what the Judges feel and infer from alleged acts of Mr.X.......... what is of only importance- when if the general public at large is offended by the alleged act of Mr.X...... and there is public opinion coming that act of Mr.X has lowered and tarnished image ..... and I remember LORD DENNING has put it very beautifully this issue.... let me conveniently turn pages of his book and will get back soon.....

By the way, it is imminent to quote here Chief Justice of US Supreme Court John Marshall: "Power of Judiciary lies not in deciding cases, nor in Imposing sentences nor in punishing for contempt, but in the trust, faith and confidence of the common man".



Sandeep Jalan
Advocate


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