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November 23, 2003 

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Contempt of Court

Clear understanding of the issue is urgently needed 

Barrister M. Moksadul Islam

Once a lawyer was not really happy with a Judge and although he was trying his best to make his submission in an articulated way, however, his face became very red. The Judge politely wanted to know whether the lawyer was trying to show his contempt. The lawyer in a cold, calm and humble voice respectfully replied that no actually he was trying to hide his contempt.

Contempt of Court is so manifold in its aspect that it is really difficult to lay down any exact definition of the offence.

We cannot, as we are accustomed to, or do not want to see that our country is in a mess. Politically, economically or judicially it is like havoc everywhere. It may not be wrong to say that, with some notable exceptions, our judiciary is still in its primitive stage and taking shape everyday. As a last resort people beg before the judiciary, although sometimes in vain, as they have no other place to go, be it against the administration or otherwise, for justice. However, an order of the court may not always redress an aggrieved person unless it is obeyed by the person against whom it was decreed. There are many who know the means to bend the law in a subtle way and many would simply ignore the order of the Court.

Contempt of Court may work as a deterrent in these situations when someone does not comply with the court order. However the question is whether it is easy to convince the court to hold someone on contempt in such circumstances and what happens even if someone is found guilty of contempt of court?
If a contempt proceeding is drawn up against a contemnor, trend shows that, the contemnor, usually, only have to offer an 'unconditional apology'. Which begs the question in a country where there is hardly any guilty plea, in any criminal proceedings; how come, in almost every contempt proceedings, all the contemnors offer 'unconditional apology'. Do they really mean that? Or simply bends the law by offering the so-called 'unconditional apology' when actually he was not asking for any forgiveness and was not sorry at all for his action. I take a pause here for our Judges, who certainly are in a better position to ascertain whether 'unconditional apology' offered for a contemnor passed the 'subjective' and the 'objective'

(reasonable) test because I believe an 'unconditional apology' should pass both tests under the legal yardstick. Otherwise a contempt proceeding against a contemnor would mean nothing but simply a proceeding to ask for an 'unconditional apology' and which obviously would waste precious judicial time.

If no one brings an application before the court, the court itself has the discretionary power to take notice or cognisance of an incident or a violation and issue a suo moto (on its own initiative) Rule to draw up contempt proceedings if someone oversteps the forbidden line. It is a discretionary power of the courts which the courts suppose to use reasonably.

This discretionary power of the court gives the court discretion to act as it pleases which include not doing anything even if many would consider that it was necessary for someone to do something about it as it cannot be expected that the court would be policing everything. Just to mention here that this power of the court to 'do nothing' is also a significant power and can lead to injustice and discrimination. A discretionary power may lead to arbitrariness if it is not used reasonably. Uniformity in using any power ensures equality before law and is guaranteed under our Constitution.

Within a very short span of time Supreme Court has issued few suo moto Rules in succession for drawing up contempt of court proceedings. Firstly, against five police officers for not knowing or ignoring the Precedent of Warrant; which led to another Rule against the Inspector General of the Police for contemptuous reply to the High Court's query. Recently the Supreme Court also issued another suo moto Rule of contempt proceeding against a Judge of the subordinate court for his surprise departure from a longstanding practice to attend a Supreme Court Judge. Both these rules aroused significant media hype and curiosity.

The underlying and noteworthy feature of all these recent suo moto Rules is that it was issued only when the court itself was aggrieved by some action unlike the citizen of this country. And another usual suo moto Rule as can be seen in the morning paper is against the newspapers for reporting something by crossing the forbidden line.

It is for sure that the judiciary does not always relax in the back seat and turned a blind eye on everything but sometimes eager to take the driving seat and issue show cause notices, on its own initiative, against injustice. On other occasions the court interprets an Act giving a legislative force which may sometimes seem like that the court is making law although it is not their function to make law. Similarly when concerned authority failed to take notice of an incident which may lead to injustice the judiciary have the discretion to take off their blindfold and take cognisance of the event.

However, let us try to see all the recent suo moto Rules from a lay man's point of view. An ordinary reasonable man would probably say that in all the abovementioned situations the court issued suo moto Rule for contempt proceedings only when a Judge personally or his office was aggrieved by someone's action. If that is so then the next question arises would the court be so kind enough to draw up a contempt proceeding easily when an ordinary citizen of the country brings an application for contempt proceeding for violating an Order of the Honourable Court issued in favour of the said humble citizen.

Moreover what is the consequences of contempt proceedings if it only means an 'unconditional apology'? When it can be ascertained for sure that the person who offered the 'unconditional apology' is not sorry at all for his action and he should not be let off the hook very easily. Most importantly for sake of justice an order of the court, given in favour of an ordinary citizen, should be implemented on time otherwise order of the court would mean nothing but an ordinary piece of paper. To ensure implementation of an order of the court it has become absolutely imperative that courts hold the perpetrator on contempt of court and punish him accordingly.

Barrister M. Moksadul Islam is an advocate of the Supreme Court.

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