Daily Times

In the Indo-Pakistan subcontinent, most of the superior courts had British Chief Justices. The summary practice of contempt of court was imported from the UK.

From very early times, the King’s Council took interest and with the passage of time the jurisdiction regarding contempt proceedings passed to the infamous Star Chamber. When the Star Chamber was abolished, much of the jurisdiction was assumed by the Common Law Courts.

In 1631, a person after his conviction for felony threw a brickbat at Chief Justice Richardson. He was indicted, his right hand was cut off and then he was immediately hanged in the presence of the court. In1634, a similar offence was committed by Williamson by throwing a stone on the judges on the bench; he was forthwith indicted, his right hand was ordered to be cut off and the hand was fixed at the entrance of the gate where it continued to be for some years.

Lord Russell, the CJ, speaking in Rej v Gray of contempt, consisting of personal abuse of a judge in a newspaper says: “I repeat that it is a personal scurrilous abuse of a judge, we therefore have to deal with it as a case of contempt and we have to deal with it brevi manu” (shorthand). The Privy Council observed that the offence of contempt is purely sui generis (LR 3PC 427).

Fox on contempt deals with its authenticity. Prince Hall, later to become Henry V of England, had a notorious brush with the law of contempt. One of his servants was arrested for committing a felony. The prince appeared enraged. Chief Justice Gascoigne ruled that the laws of the land must be met. The prince was sentenced for contempt and committed to Kings Bench Prison. The episode has been eloquently dealt with by Shakespeare in Henry V Part II Act V Scene II.

According to Oswald on contempt, the root of the present British practice is Almon’s Case. In 1765 a rule nisi was obtained by the Crown to attach John Almon, a bookseller, for publishing a libelous piece on Chief Justice Lord Mansfield. After the arguments were concluded, the judgment in favour of granting the attachment was ready to be delivered but the judges discovered that the rule nisi had been entitled King v Wilkes instead of King v Almon. Justice Wilmot urged the defendant’s counsel Glynn: “Gentleman, consent to an amendment.” To which the counsel replied, “As a man of honour he could not.” The proceedings had to be abandoned. Never pronounced in court, this extra judicial opinion did not possess the binding effect of a decision but it acquired the singular distinction of becoming a leading authority by citation, the earliest of which was decided 56 years after the opinion was written.

In 1883, the Contempt of Court Bill was introduced in the House of Lords. Lord Fitzgerald said: “He believed that a practice of summary punishment for Constructive Contempt did not exist in any other country. The present system was uncertain, undefined and dependent on capricious discretion.”

In the year 1906, the House of Commons passed the resolution that the jurisdiction of judges in dealing with contempt of court was practically arbitrary and unlimited and called for the action of Parliament with a view to its definition and limitation.

In 1934, Sir Shadilal retired and Sir Douglas Young became the Chief Justice of the Lahore High Court. In November 1936, Lala Har Krishanlal Gauba was convicted for contempt of court and was brought before the Chief Justice and Justice Monroe. Lala declined to apologise and was sentenced to a month’s imprisonment. In December Lala was convicted again on the complaint of an official receiver and ordered to be jailed for an indefinite period, that is until he would agree to apologise. Meanwhile, the legislature enacted the Act of 1937 prescribing the period of sentence as six months (AIR 1942 Lahore 105). Lala was released from jail after 13 months. It is unnecessary to go into the various allegations made against the Chief Justice in New Magna Carta, authored by Lala’s son, K L Gauba. The Chief Justice issued notice to the author and constituted a bench of three judges to hear the contempt matter. Gauba refused to apologise and wanted to lead evidence, which was disallowed. He was sentenced to six months imprisonment. A petition for leave to appeal to the Privy Council was filed. The Privy Council conveyed to the Viceroy through Secretary State of India that although their Lordships had refused to grant leave they were of the view that the matters raised in the book called for an inquiry and the Chief Justice should face an inquiry or resign. In or about January 1943, an announcement was made that His Majesty the King Emperor has been pleased to appoint Sir A T Harris, then Chief Justice of Patna, as the Chief Justice of the Lahore High Court from January 1943 on the resignation from office of Chief Justice Young. Justice Monroe also resigned.

In February 1968, Quentin Hogg (Lord Hailsham) in an article in Punch accused the Court of Appeal of making the Gaming Act unworkable and advised that “silence is always an option”. A petition was filed for contempt. Lord Denning held that “the article was not only critical but wrong, the decision that Hogg had attacked had not been given by a Court of Appeal but by another court. In any case we will never use the jurisdiction as a means to uphold our dignity. That must rest on surer foundations. It was the right of every man to make fair comment, even outspoken comment, on matters of public interest. All that the courts asked was that those who criticised its members should remember that they could not reply.”

In October 1973, the NIRC fined the Amalgamated Union of Engineering workers £ 100,000 for contempt of court when they refused to obey the court’s order to call off the strike. To obtain the payment of fine the court attached assets held in the political funds of the union. Labour MPs put down a motion in the House of Commons calling for the removal from office of the President of the NIRC for “political prejudice and partiality”. Sir John Donaldson defended himself at this point. Lord Hailsham, the then Lord Chancellor, attacked those who had signed the petition, whereupon the Labour members tabled another motion condemning the Lord Chancellor and alleging “a gross contempt of the House of Commons”. In the event neither of the motions were debated and the matter lapsed.

In an order concerning newspapers Lord Denning observed, “The press makes noises.” The Observer came out with a headline: “Why Denning is an Ass.” The Times observed: “Lord Denning this time is on the wrong side. The Court of Appeal has done a disservice to the cause of press freedom.” When the House of Lords upheld the Court of Appeal, the Times denounced the verdict as a “Charter for Wrongdoings”. It may be mentioned the Law Lords ignored the press when they published their picture upside down.

After the verdict of the House of Lords in the Spycatcher case, the issue was taken to the European Court of Human Rights for violation of Article 10 of the European Convention, which protects the right to Freedom of Expression. The European Court concluded by 11 votes to nine that the injunction did not correspond to social needs sufficiently to outweigh public interest in the freedom of expression and therefore was not necessary in a democratic society for maintaining the authority of the judiciary; accordingly it was in violation of Article 10.

The British government appointed the Fillmore Commission as regards the law of contempt. As a result of the report of the Commission, a bill was moved in Parliament, which on enactment became the Contempt of Court Act 1981. The Act was passed but the Contempt Law was not repealed. G Robertson writes in Media Law: “It may be that the British press had itself to blame for Parliament’s refusal to abolish the archaic law of contempt.” During the 1981 reforms an amendment to the effect was rejected after Lord Hailsham recalled a recent incident that had arisen after the Court of Appeal denied a divorce to a woman who claimed that her husband was unreasonable in having sex with her once a week. A journalist from Fleet Street telephoned wives of the appellant judges to ask how often a week they regarded sex as reasonable. The offence of scandalising the court, said the Lord Chancellor, was still required to deal with such conduct (Ahsan v Cowasjee PLD 1998 SC 823 relv. pg 970).

(To be continued)

The writer is a Senior Advocate