By Asif Mahmood
Contempt of court is a colonial law and we are now justified in feeling hard done by. Sagacity demands it should be ameliorated forthwith, if not repealed.
Admittedly, pillorying the courts doesn’t amount to freedom of expression. Culling the contempt law is no option either. On the contrary, it must be applied with all its might in cases of non-compliance with the court order or in matters of criminal contempt. Courts cannot be left to the venom and vitriol of paranoid political elite, bereft of forbearance. The freedom of expression provided under the Constitution, too, is subject to certain limitations and restrictions.
Worst still, however, is the fossilized procedural status quo, the contempt law is grappled with.
The contempt law is flawed on three accounts. Firstly, it is riven with the well-established legal maxim that no one can be a judge in one’s own cause. Secondly, in contempt proceedings, an appellate court starts functioning as a trial court and it is an infraction of constitutional jurisprudence. Thirdly, it shrinks and tappers the right of people to hold opinions as provided under Article 10 of the Constitution as it prohibits any discussion even on the conduct of a judge in the discharge of his duties.
The formidable challenge now is to come up with a prudent and well-thought amendment.
Pertinent to mention is the fact that such an attempt has already been made by the Parliament back in 2012 when it promulgated the Contempt of Court Act, 2012 in haste only to be declared unconstitutional and illegal by the Supreme Court. Doing the same thing again in the same fashion cannot bring a different result. Laconic afterthought should take precedence over smug legislation.
The concerns mentioned therein by the court can help the parliament do it again with more care and caution. Another ill-omened egregious misadventure on the part of Parliament may worsen the situation. Especially when the Supreme Court has the power of judicial review and exercising this, it can strike down any legislation of the parliament.
There are multiple options available to put things in order. The substantive law as well as the procedural law needs an insightful reconsideration sans any egoistic and partisan approach. We are already hurtling down the steep slope. Much damage has already been done.
1. First and foremost, is to introduce an amendment in the substantive law, restricting and narrowing its application only to the matters of direct contempt, criminal contempt, or non-compliance to the court verdict. A strict application of law in this situation is imperative and a must. However, criticism within the spectrum of decency is altogether a different thing and legislators should keep a level head in solving this tricky conundrum.
Article 68 of the constitution states: “No discussion shall take place in Majlis-e- Shora (parliament) with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.”
Deep-time thinking is required on two fronts. One, how far is this provision in conformity with the right of expression provided under Article 19 of the constitution? Two, wouldn’t it be more appropriate if it were rephrased as ‘no derogatory or contemptuous discussion shall take place’ instead of putting a stop to the discussion itself? This question becomes more meaningful when we look at the history of judicial decisions and implications of the judicial activism.
2. Once cognizance is taken, the same judge or the bench should not be allowed to adjudicate. On the contrary, the matter should better be referred to another judge or another bench. The principle is very clear: No one can be a judge in one’s own cause.
4. Legislators can spring into some out-of-the-box solutions too.
For example, a separate and special bench, comprising judges, members from civil society, intelligentsia, lawyers, etc., can be constituted to hear contempt cases
Among many qualms about our constitutional acumen has been our easygoing attitude towards creating our jurisprudence. Among the few raptures of this past decade has been the advent of the Constitution in our layman’s street political narrative
This reminds me of Dickensian ‘A Tale of Two Cities:
“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair.”
