Enacting a new law on contempt

The statement regarding objects and reasons of the bill has said that Contempt of Courts Act that now exists in our country was promulgated in 1926 when the British ruled the sub-continent. This law is insufficient and vague. There are only three sections in that law. More importantly, the law did not define contempt of court. As a result, doubts exist in the mind of the people regarding offences for contempt of court on the one hand, and complications arise in the exercise of powers by different courts on the other hand. Under these circumstances, it has been necessary to enact a new and comprehensive law on contempt of court.

The proposed CCB contains 21 sections, some sections having one or more sub-sections. Section 2(c) of the draft bill proposes a four-point definition of contempt of court while Section 3 of the bill details seven activities that would not constitute contempt. The other sections relate to issues such as jurisdiction of courts, procedures, punishments, self-defence, tendering qualified or conditional apology before the court, contesting the case along with tendering apology, special provision for government officials, rule making power of the Supreme Court, etc.

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According to Section 2 of the bill, "any willful act, statement or expression by words or visible sign that may be considered as a violation of any verdict, decree, order, writ or warrant issued by a court, or undermine any court, or may obstruct the process of justice, will constitute an offence of contempt of court. The slander or libel of a court and personal criticism of a judge while performing judicial functions will also constitute an offence of contempt."

According to Section 3 of the bill, the following activities will not constitute offences of contempt:

(a) Any innocent and fair comment and publication of information on normal proceedings and functioning of the court in good faith and in public interest.

(b) Any statement made by a person in good faith and decent language in his application to the government or any court seeking disciplinary proceedings against any judge.

(c) A factual statement or news regarding the conduct of a judge or any act or statement by a person regarding a judge in a matter not connected with the discharge of his judicial functions.

(d) Any constructive criticism of a judgement against which appeal is pending.

(e) Any restrained and constructive criticism of the final judgement in a case.

(f) Comments made or news published on any matter remaining uninformed about the proceedings of the court on the matter.

(g) Authentic news or comments published on any matter of public interest.

In view of shortage of space, let me now highlight some of the activities that do not constitute offences of contempt in some of our neighbouring countries.

Contempt of Courts Act, 1971 of India has provided that the following activities shall not constitute offences of contempt:

-- A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.

-- A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned above, if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid.

-- A person shall not be guilty of contempt of court for publishing a fair and accurate report of judicial proceedings before any court sitting in chambers or in camera except in certain cases.

-- A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.

-- A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer or any subordinate court to (a) any other subordinate court, or (b) the High Court to which it is subordinate.

Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under the Contempt of Courts Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

Contempt of Court Ordinance, 2003 read with Contempt of Court Ordinance, 1998 of Pakistan, have, among others, the following provisions:

-- The publication of a substantially accurate account of what has transpired in a court, or of legal proceedings shall not constitute contempt of a court.

-- Fair and healthy comments on a judgement involving questions of public importance in a case which has been finally decided shall not constitute contempt provided it is phrased in temperate language and the integrity and impartiality of a judge is not impugned.

-- No person shall be guilty of contempt of court for making any statement, or publishing any material, pertaining to any matter which forms the subject of pending proceedings, if he was not aware of the pendency thereof.

-- No proceedings for contempt of court shall lie in relation to the following:

* Remarks made in an administrative capacity by any authority in the course of official business, including those in connection with a disciplinary inquiry or in an inspection note or a character roll or confidential report; and

* A true statement without intent to scandalize a judge regarding his conduct in a matter not connected with the performance of his judicial functions.

-- No person shall be found guilty of contempt of court, or punished accordingly, unless the court is satisfied that the contempt is one which is substantially detrimental to the administration of justice.

Let me now revert to the CCB tabled in our parliament. A closer look into the draft CCB reveals that it, particularly the provisions relating to the activities that shall not constitute offences for contempt, largely resembles the contempt of court laws in India and Pakistan.

It is heartening to learn that the parliamentary standing committee composed of members of the treasury and opposition benches has expressed interest to thoroughly scrutinise the bill. Khandaker Mahbub Uddin Ahmad, the chairman of the committee is reported to have said that they wanted to pass the bill unanimously and are taking time to arrive at a consensus on the bill.

The media reports suggest that the special provision that no court will ask any government official to appear in person in a court before being given an opportunity to explain his or her position about the allegations of contempt of court has so far been severely criticised.

In the face of a longstanding demand from a cross-section of society, the government decided to enact a new and comprehensive law on contempt of court replacing the Contempt of Court Act, 1926 which is obsolete and does not even define contempt. The law ministry reportedly had a series of consultations with a cross-section of society, including journalists, lawyers, and judges.

It is learnt that the Law Commission recommended the enactment of the law and sent a draft bill to the government. The proposed bill, among others, clearly defines contempt and is media-friendly. It is expected that the parliamentary standing committee will clear the bill with amendments, if any, and the house will pass the bill in the forthcoming budget session.

M. Abdul Latif Mondal is a former Secretary to the Government.