Daily Times

The Law of Contempt did not and cannot stop criticism of the courts. Quaid-e-Azam Mohammad Ali Jinnah and Mahatma Gandhi, both barristers, made comments about the highest tribunals.

In February 1925, Sir Hari Singh Gower moved in the Legislative Assembly of India a resolution for abolishing the jurisdiction of the Privy Council and for the establishment of the Supreme Court in India. Mr Jinnah supported him and observed: “I have no hesitation in saying that the Privy Council has on several occasions murdered the Hindu Law and slaughtered Mohammadan Law.”

In 1946, the British Cabinet Mission announced its plan for transfer of power. One of the terms was the grouping of Assam and Bengal. The Congress opposed it. The Cabinet Mission suggested that the opinion of the Federal Court may be sought. Mr Gandhi observed: “The Federal Court is the creation of the British. It’s a packed court.”

In 1993, the Supreme Court restored Mian Muhammad Nawaz Sharif as prime minister and Benazir Bhutto commented that ‘Chamak’ had been at work. No action was taken.

Arundhati Roy, the celebrated writer, in an affidavit before the Supreme Court said: “It indicates a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it.” She was held guilty of ontempt of court. (AIR 2002 SC 1375). She refused to apologise. It may be mentioned that in the issue of India Today, August 21, 2001, she had stated that she did not believe in the contempt of court. Every institution in her perception must earn respect and they cannot demand it.

The Supreme Court of Pakistan has heard important cases of contempt proceedings against five prime ministers: Zulfiqar Ali Bhutto, Mian Muhammad Nawaz Sharif, Benazir Bhutto, Syed Yousuf Raza Gillani and Raja Pervez Ashraf.

In India, the proceedings for contempt were instituted against Prime Minister Pundit Jawaharlal Nehru in the High Court of Madras, which was rejected in limine.

When the proceedings for contempt of court against Mian Muhammad Nawaz Sharif were being heard by a bench headed by Chief Justice Syed Sajjad Ali Shah and four others, a crowd entered the court premises, raised slogans and indulged in rowdyism. The incident was mentioned in a national daily with the caption: “CJ seeks Army’s protection as mob storms SC.” The judges returned to their chambers. Proceedings were instituted against some of the persons, which were heard by Justice Nasir Aslam Zahid and two others. The bench held that contempt proceedings being in the nature of criminal proceedings, suspicion without proof beyond reasonable doubt could not entertain a criminal charge. It was held that the charges of contempt were not established and the respondents were therefore acquitted of the charges (2000 SCMR 751).

Further inquiry was held, videocassettes were produced by some of the witnesses and the contempt proceedings were heard by a bench of five judges headed by Justice Irshad Hasan Khan. The bench included three judges who were hearing the matter when the crowd entered the premises. The respondents were convicted and sentenced to undergo simple imprisonment for one month and a fine of Rs 5,000 each, and if in default, to suffer simple imprisonment for a further period of one month (2000 SCMR 1969).

Yousuf Raza Gillani was found to have persistently and wilfully showed disobedience in complying with the directions of the court and was consequently convicted and sentenced for contempt of court. He stood disqualified as a member of the National Assembly and therefore stood removed from the office of the prime minister. Contempt of Court Act XVIII of 2011 was enacted inter alia to bail out Gilani. The Supreme Court held that the said Act was contrary to Article three and four of the constitution and was void ab initio (PLD 2012 SC 870).

Shiv Shankar, the Indian minister of law, addressing the meeting of the Bar Council at Hyderabad, made severe criticism and wild allegations against the institution of the judiciary. He bitterly criticised the judgment in the Kesavananda Bharati case (AIR 1973 SC 1461), and observed that the representatives of the elitist culture of the country ably supported by industrialists and the beneficiaries of independence got together and benefited from the Supreme Court {(1988) 3 SCC 167}. No action was taken against him.

The Constitution (XVIII Amendment Act 2010) added Article 10-A: right to fair trial — for the determination of civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. It is submitted that in view of this article the Law of Contempt, which is sui generis (shorthand summary procedure), loses its validity. If the foundation is gone, the superstructure is bound to fall.

It is apt to recall what Justice Black wrote in the Green case: “When the responsibilities of law maker, prosecutor, judge, jury and disciplinarian are thrust upon a judge, he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt and innocence of the accused. He truly becomes the judge of his own cause. The defendant charged with criminal contempt is thus denied an indispensable element: the due process of law.”

(Concluded)

The writer is a senior advocate