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Report No. 274

7.6 With respect to the power of contempt under the Constitution, Articles 129 and 215 vest the Superior Courts with the power to punish for their contempt. Therefore, even in the absence of any legislation outlining the procedural powers of the Supreme Court and High Courts with regard to investigation and punishment of their contempt, these Courts are empowered to investigate and punish a contemnor by virtue of the powers conferred on them by the Articles aforesaid.

Additionally, Article 142(2) also enables the Supreme Court to investigate and punish any person for its contempt. Thus, the suggestion to delete the provision relating to 'criminal contempt' inter alia 'scandalising of courts' will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions.

7.7 The Act 1971 is, therefore, not the source of 'power to punish for contempt' but a procedural statute that guides the enforcement and regulation of such power. The reason being that even prior to the commencement of Act 1926 these inherent powers were being exercised by the Superior Courts. Thus, the powers of contempt of the Supreme Court and High Courts are independent of the Act 1971, and, therefore, by making any such amendment, the power of the superior courts to punish for contempt under Articles 129 and 215 of the Constitution cannot be tinkered or abrogated.

7.8 Entry 77 of the Union List of the Seventh Schedule enables Parliament to inter alia legislate on ".. jurisdiction and powers of the Supreme Court, (including contempt of such Court) ..". However, with respect to contempt, this power has been interpreted by the Supreme Court in various pronouncements, as limited to only defining and laying down the procedure to be followed in contempt proceedings.

In other words, the power of Superior Courts, which are vested in them by the Constitution, cannot be fettered by any legislation. As the sanctity of Articles 129 and 215 has been upheld by the Supreme Court on several occasions, any amendment to the Act 1971 that goes against the spirit of these Articles is undesirable.

7.9 As noted in Pakistan, the Contempt of Courts Act, 2012 was struck down by the Supreme Court of Pakistan for being violative of the Constitutional mandate providing for access to justice, and for the substitution of the expression 'scandalising the court' with 'scandalising a judge in relation to his office', among other grounds. The Court observed that the Act 2012, as it stood, tantamounts to amending the Constitution itself.

7.10 Circling back to the legislation itself, the Act 1971 was enacted with the objective of regulating the power and procedure for contempt cases, and it does exactly that by putting limits on this power, and prescribing procedures et.al. The Act 1971 after defining civil and criminal contempt prescribes its contours as well, such as under sections 3 and 13 - laying down cases that do not amount to contempt and the cases where contempt is not punishable.

Similarly, sections 14, 15 et. al. laying down the procedural requirements to be complied with in contempt cases. In this manner, the Act 1971 contains adequate safeguards to exclude such instances which may not amount to criminal contempt as defined under section 2(c) of the Act 1971, thereby restricting instances of misapplication. There is also no denial that the Act 1971 has very well stood the test of the judicial scrutiny for about five decades, as is evident from the case law discussed in the preceding chapters.

7.11 A change to limit the ambit of 'contempt' only to 'wilful disobedience of directions / judgement of Court' will effectively demote the expressions 'contempt' and 'contempt of court' as used in and referred to under the Act 1971. Such limitation will not affect the powers of the Supreme Court and High Courts to punish for their contempt (as discussed earlier); but will largely expose the subordinate courts to increased instances of unaddressed 'contempt of court', particularly 'scandalising', because of the narrowed scope of Section 10 i.e. the power of High Court to punish for 'contempt' of subordinate court.

7.12 Further, any amendment to the Act 1971 to amend the already existing definition of 'contempt' will also lead to ambiguity because the same is bound to give rise to more occasions for spontaneous and multiple definitions and interpretations as the Superior Courts exercise their inherent powers of contempt. In the interest of consistency and coherency, it is suggested to continue with the existing definition, which has stood the test of judicial scrutiny.

7.13 More so, curtailing the scope of contempt to only include 'wilful disobedience of directions / judgment of Court' seems undesirable because of the continuing need for deterrence against contemptuous elements. If the provisions are so narrowed in scope, there will be a reduction in impact. Such a change in the law of contempt could potentially lessen the respect for or fear of the courts and their authority and functioning; and, there is a possibility that this may lead to an undesired increase in the instances of deliberate denial and blasphemy of the courts.

7.14 It is also noteworthy that the definition of 'contempt' under consideration here was first introduced in the Act 1971, with no such definitions in the earlier Acts. It was only in 1971 that a legislation not only defined 'contempt', but also categorised it under 'civil' and 'criminal' contempt, providing succinct definitions for the same. It is evident from the 'Statement of Object and Reasons' of the Act 1971 that the preexisting law on contempt was found to be "uncertain, undefined...". A decision to now roll back on this definition will take us back to the uncertainties of the past, undoing a lot of progress that has been achieved in this field since the Act 1971.

7.15 The reference received by the Commission from the Government is confined only to section 2(c) of the Act 1971. The said Act has been amended twice, once in the year 1976 and then in 2006 as per the need of the time. The suggested amendment to section 2(c) would not be a meaningful exercise and would not be in the larger public interest, for the reasons adduced in the foregoing chapters.

Further, viewed from the angle of the frequent indulgence of unscrupulous litigants and lawyers alike with administration of justice, it would not be in the interest of litigants and the public at large to minimise the effect of the exercise of powers of contempt as and when the need arises. Therefore, the Commission does not consider it necessary to make any amendment therein for the present.

The Commission recommends accordingly.



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