Star Law analysis
Law on contempt of court : An overview
An independent or impartial Judiciary is the sine qua non of a healthy society. It is the last resort for the common people of a country, as they repose their ultimate faith in it to get justice. Therefore, it is essential for the Judiciary to be protected from all sorts of evil likely to affect the administration of justice. For better protection and preservation of prestige and dignity of the courts, the law on contempt of court has evolved. So, broadly speaking, this law helps the courts in discharging justice keeping its stand supreme in the eye of society. Actually this law aims at ensuring the administration of justice by courts in the society.
The Contempt of Court Act 1926
The Contempt of Court Act 1926 (CCA) with only three sections is still effective in Bangladesh, even though a new Bill on this matter is under process to be enacted. However, CCA does not define as to what is or amounts to be a contempt of court. Actually the matter has been left on the discretion of the courts. So, any act which a judge thinks to be disgraceful for the court is contempt of court. This power is endowed with court so that justice is not hampered by the disrespect and contumacy of people. It does not protect the judge as a person rather safeguards the seat of justice.
No court of lower judiciary can punish the contemner. Section 2 of this Act provides that if a court subordinate to the High court Division (HCD) finds any act of any person to be contemptuous, it shall refer the same to the High Court Division for punishing the contemner. However, the general trend is that before sending the matter to HCD, the contemner is asked to show cause.
Again section 3 of this Act provides that a contemner may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand taka or with both.
Classification of Contempt of Court
Under the common law system contempt of court has been categorised as criminal contempt and civil contempt. Criminal contempt includes the contempt in front of a court (civil or criminal) obstructing the administration of justice. For example, shouting in the court room, threatening a witness, direct criticism of judges, scandalising the court etc. are criminal contempt. On the other hand, civil contempt encompasses wilful disobedience to orders or processes of the court so as to cause private injury. It is erroneous to think that criminal contempt arises in the criminal court or civil contempt arises in the civil court.
Relevant existing laws relating to Contempt of Court in Bangladesh
Apart from the Contempt of Court Act 1926, the following laws are relevant to contempt of court:
- Section 480 of the Code of Criminal Procedure : Under this section the court can take action against the offender in various steps.
- Section 224 of the Penal Code : This is the only section under the Penal Code which deals directly with contempt of court.
- Sections 175, 178, 179, and 180, of the Penal Code also deal with contempt of court, when a public servant works as a judge.
The Contempt of Court Bill 2006
A lot of controversies have arisen regarding the Contempt of Court Bill 2006 (CCB), which inserts 21 sections with some sub-sections. Apparently the Bill is a fair one as it comprises many pragmatic provisions in the light of the current social needs. However, some provisions may tremendously affect the dignity and power of courts. Any way, CCB defines contempt of court with utmost sincerity.
Definition of Contempt of Court
Section 2 of CCB Provides that "any wilful 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''.
Actually the definition covers all the possible activities that may obstruct the administration of justice directly or indirectly. In the absence of this definition, confusion was existing among the concerned sections of the people over the past years. Uncertainty would arise as to what would or would not be the contempt of court. This very definition will resolve the existing problems, though some activities have been kept beyond the scope of this definition .
Exceptions to Section 2
Section 3 of CCB includes some situations or activities that will not constitute offences of contempt of court covered under Section 2. These are:
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 judgment against which appeal is pending.
e) Any restrained and constructive criticism of the final judgment 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.
The above exceptions will not hamper the administration of justice in any way. Rather these will contribute a lot to get fair justice from the Courts. For example, freedom of press is very essential to get the real picture about the court administration, procedure and all other influential factors. So freedom of press has been recognised as one of the fundamental rights in the Bangladesh Constitution. For this very cause of public interest, a court is to sustain constructive criticism made against it. Moreover, the above exceptions will lead to ensuring accountability of the judiciary to some extent.
Potential conflict between the Judiciary and Executive:
Generally Judiciary enforces the rights of the citizens and imposes penalty to the offenders. In doing so, it pronounces necessary directions or orders, which are mostly implemented by various sections of the executive body. But if any officer or authority of executive body disrespects a court any way, penalty and punishment can be imposed and consequently sometimes the offender may have to lose his job under the Public Servants (Dismissal on Conviction) Act 1985. But this very Act is going to be amended finally confirming that a public servant will lose his job only when he is imposed with a fine of more than ten thousand taka. On the other hand, under the proposed CCB, in the extraneous situation the court has power to impose the maximum penalty which is less than ten thousand taka. If CCB is passed ultimately, no public servant will lose his job, even though he commits the worst kind of contempt. He will at most suffer from paying a particular sum of money. But under the Act of 1926, the public servants would not disrespect the courts for fear of losing their job. Therefore, after the passing of CCB, the ingrained conflict between the judiciary and executive will be more complex. And mutual respect between them may decrease gradually.
Law on contempt of court in India and Pakistan
Actually the definition of contempt of court in CCB is mostly similar to that of contempt of court in Indian and Pakistani laws. The definitions of these three laws are identical in content and spirit. The main reason behind this legal similarity is that the socio-economic and politico-cultural aspects of Bangladesh, India and Pakistan are same to a larger extent.
Like CCB the Contempt of Courts Act 1971 of India includes some activities that will be beyond the meaning of contempt of court. Roughly these are:
- Bonafide publication of any matter;
- Bonafide distribution of any publication;
- Publication of a fair and accurate report of judicial proceeding;
- Publication of any fair comment on the merits of a case;
- Bonafide statement concerning any officer or court;
- Any act not harmful to the administration of justice.
Similarly, the Contempt of Court Ordinance 1998 of Pakistan inserts some exceptions to the definition of contempt of court. Roughly these are:
- Publication of accurate account of legal proceeding;
- Fair and healthy comments on a judgment for public interest;
- Bonafide publication of any matter;
- Official remarks on any inquiry, inspection note, confidential report etc.
- A true statement without intent to scandalise a Judge.
- Any act not substantially detrimental to the administration of justice.
Bangladesh, India and Pakistan admit some exceptions to the definition of contempt of court in certain situations. Most of these are related to the freedom of press, which is a fundamental right in their constitutions.
The Contempt of Court Bill 2006 may be termed as a dynamic and pragmatic Bill, since it is repealing the century-old Act of 1926 with an excellent definition of contempt of court. It comprises some exceptions, which will ensure the public interest as well. However, the penalty provision may drastically turn the entire Bill into a black law. The main reason is that the government is amending the Public Servants (Dismissal on Conviction) Act 1985 likely to relieve some convicted high ranked bureaucrats. Achieving this narrow political end may ultimately destroy the towering image of the Judiciary. Therefore, before the passing of this Bill, it should be reviewed and reformed with a view to ensuring a just society.
The writer is a Student of LL. M, Department of Law, University of Dhaka.