(i) The petitions are maintainable under Article 184(3) of the
Constitution as questions of public importance with reference to
enforcement of Fundamental Rights are involved therein;
(ii) Under Article 204 read with Entry 55 of the Fourth Schedule to
the Constitution, the High Courts and the Supreme Court have
powers to punish any person who is found guilty for the
Contempt of Court falling within the definition of contempt of
Court given in clause (2) of Article 204 of the Constitution;
(iii) Section 2(a) of COCA 2012, which defines the word "Judge" as
including all officers acting in judicial capacity in administration
of justice, is contrary to Article 204(1) of the Constitution as
under the latter provision, the Court means the Supreme Court
or a High Court;
(iv) Section 3 of the COCA 2012 as a whole is void and contrary to
Articles 4, 9, 25 & 204(2) of the Constitution for the reasons
that–
(a) The acts of contempt liable to be punished mentioned in
Article 204(2)(b) and some actions of contempt of Court
falling under Article 204(2)(c) have been omitted from the
definition of contempt of Court given in section 3 of COCA
2012;
(b) COCA 2012 has been promulgated under clause 3 of Article
204 of the Constitution, which confers power on the
legislature to make law to regulate the exercise of power
by the Courts, and not to incorporate any substantive
provision or defences as it has been done in the proviso;
(c) Powers of the courts have been reduced by incorporating
expression "by scandalizing a Judge in relation to his
office" whereas in Article 204(2) the word 'Court' has been
used. Similarly, the definition provided by section 3 runs
contrary to the provisions of Article 63(1)(g) of the
Constitution according to which, if a person has been
convicted/sentenced for ridiculing the judiciary, he will be
disqualified to hold a pubic office, and in section 3 this
expression has been omitted and instead of institution of
judiciary, scandalization of a Judge has been confined in
relation to his office;
(d) By enacting provisos (i) to (xi) to section 3,
immunities/defences have been provided, whereas no such
provision exists in the Constitution; and
(e) The proviso (i) to section 3, which grants exemption to the
public office holders mentioned in Article 248(1) from
contempt of Court is violative of Article 25 as under Article
204(2), the Court is empowered to punish 'any person' for
its contempt without any exception.
(v) Incorporation of Article 248(1) in proviso (i) to section 3 is
tantamount to amending the Constitution, which cannot be done
without following the procedure laid down in Articles 238 and
239 of the Constitution;
(vi) Article 248(1) has not granted immunity to any of the public
office holders mentioned therein from any criminal proceedings,
therefore, by means of proviso (i) to section 3, no immunity can
be granted to the public office holders in violation of Article 25 of
the Constitution;
(vii) The terms and phrases used in provisos (i) to (xi) to section 3
are ambiguous and absurd and are meant to give benefit to
contemners who have no respect for the judgments of the
Courts, therefore, the said provisos being contrary to the
principle of equality before law are void;
(viii) Under subsection (4) of section 4, the effect of earlier judgments
has been nullified by pronouncing a legislative judgment without
removing the basis on which the judgments were pronounced,
which is violative of the Fundamental Right of access to justice
as enshrined in Article 9 and this provision also runs contrary to
Article 189 of the Constitution; therefore, this provision is void;
(ix) Section 6(2) is not sustainable because of declaration of section
3 void as a whole;
(x) Section 6(3) encourages/promotes the commission of contempt
of Court by postponing cognizance of a contempt of Court arising
from an averment made in due course in appellate, revisional or
review proceedings, till such proceedings have been finalized and
no further appeal, revision or review lies, although to maintain
the dignity and respect of the Court, prompt action to punish the
contemner is called for. As any delay in this behalf would not
only erode the dignity, but would also promote the tendency of
disrespecting the courts and their orders, therefore, this
provision being contrary to the principle of independence of
judiciary and access to justice as enshrined in Articles 2A and 9
of the Constitution is void;
(xi) Section 8 relating to transfer of proceedings is tantamount to
curtailing the judicial powers. Subsection (1) of section 8 is not
sustainable because instead of the phrase 'scandalizing the
Court', expression 'scandalizing a Judge in relation to his office'
has been used. This subsection also runs contrary to recognized
principle of punishing any person who is guilty of contempt on
the face of the Court where a prompt action to maintain the
dignity of the court is called for;
(xii) Transfer of proceedings form one Judge/Bench to another
Judge/Bench is the prerogative of the Chief Justice being
administrative head of his Court, which cannot be controlled by
the legislature, therefore, subsection (3) of section 8 is violative
of the principle of independence of judiciary;
(xiii) Under subsection (5) of section 8, legislature cannot exercise
power of transferring a case from the file of Chief Justice to next
Senior Judge as it would be against the independent functioning
of the Court and legislative interference in this behalf is
tantamount to undermining the authority of the Chief Justice and
other Judges as well. As such, this provision too is not
sustainable;
(xiv) Section 10(b) is violative of Fundamental Right of freedom of
speech and expression enshrined in Article 19, which is subject
to a reasonable restriction,
inter alia, in relation to contempt of
Court and Article 68 of the Constitution, which provides that nodiscussion shall take place in Parliament with respect to conduct
of a Judge of the Supreme Court or a High Court;
(xv) Section 11(3) relating to filing of intra-court appeal against
issuance of show case notice or an original order including an
interim order passed by a Bench of the Supreme Court in any
case, including a pending case to a larger Bench consisting of all
the remaining available Judges of the Supreme Court within the
country is violative of the principle of expeditious disposal of the
cases enshrined in Article 37(d) of the Constitution and the
possibility of hearing of appeals by a larger Bench consisting of
remaining Judges of the court within the country may render the
proceedings ineffective as against each interlocutory order,
appeals will be filed and there would be no end to the
proceedings and in such a manner the dignity and independence
of the Courts would be compromised;
(xvi) The first proviso to section 11(3) will render the whole
proceedings of contempt of Court ineffective as at the initial
stage after issuing a show cause notice, Full Court will have to
be assembled to examine the grievance of the contemner if the
show cause notice has been issued by half of the Judges
whereas under the Supreme Court Rules, 1980, even very high
profile cases may be decided by a two-member Bench;
(xvii) The second proviso to section 11(3), which provides for
automatic suspension of a judicial order, is violative of the
principle of trichotomy of power and the independence of
judiciary. The passing of such an order is essentially a judicial
function, which has to be performed by the Judges of the
Supreme Court or the High Courts. The provision in question is
contrary to settled principles governing the grant or refusal of an
injunction/stay order. Thus, it being against the principle of
independence of judiciary is not sustainable;
(xviii) The provisions of subsections (4) and (5) of section 11, which
prescribe limitation of 30 days for filing an appeal to a Bench of
the High Court, 60 days for filing appeal to the Supreme Court,
and filing of intra-court appeal or application for re-appraisal
within 30 days from the date of show cause notice or the order,
as the case may be, are aimed at delaying decision of contempt
cases and compromise the expeditious disposal of such cases to
restore the dignity of the Courts, who are responsible for
administration of justice;
(xix) Section 12 of the Act is contrary to Article 204(3) of the
Constitution, thus
void ab initio;
(xx) By means of Article 270(AA), the Contempt of Court Ordinance,
2003, which was promulgated on 15.12.2003, continued in force
till 12.07.2012, the day on which COCA 2012 was promulgated.
In enacting section 13, which repeals COCA 1976, and the
Ordinances of 2003 and 2004, no reason has been assigned for
the repeal of the same;
(xxi) Subsection (2) of section 13 whereby COCA 1976, which already
stood repealed on 15.12.2003, has also been repealed along
with Ordinances of 2003 and 2004 without spelling out logical
reasons to promulgate COCA 2012, therefore, it is a nullity in the
eyes of law;
(xxii) As per preamble of the legislation under scrutiny, it has been
framed in exercise of the powers conferred by clause (3) of
Article 204 of the Constitution, which provides that the exercise
of the power conferred on a Court by this Article may be
regulated by law and subject to law by rules made by the Court,
but it does not mean that a statute can control or curtail the
powers conferred on the superior Courts by the said Article, nor
does it mean that in the absence of a statute on the above
subject, the above Article would be inoperative; and
(xxiii) While enacting COCA 2012 in pursuance of clause (3) of Article
204 read with Entry 55 of the Fourth Schedule to the
Constitution, attempt has been made to reduce the powers of
the Court as has been indicated in different provisions, thus, all
such provisions are contrary to Entry 55 of the Constitution.
After having found various provisions of COCA 2012 as
ultra vires
the Constitution, we are of the opinion that the remaining
provisions of the impugned legislation, if allowed to stay on the statute
book, would serve no purpose particularly, when it has been held that
repealing section itself is a nullity, therefore, the principle of
severability as applied by this Court in
Mehram Ali v. Federation
Pakistan
(PLD 1998 SC 1445) and Dr. Mobashir Hassan' case is not
attracted. Thus, having been left with no constitutional option, COCA
2012 is declared unconstitutional, void and
non est, as a consequence
whereof, following the dictum laid down in
Attorney General for Alberta
v. Attorney-General for Canada
(AIR 1948 PC 194), it is declared that
the Contempt of Court Ordinance, 2003 shall be deemed to have
revived with effect from 12.07.2012, the day when COCA 2012 was
enforced with all consequences.
No order as to costs.
CHIEF JUSTICE
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