Friday, August 03, 2012

Supreme Court Strikes Down New Contempt of Court Act

Supreme Court Strikes Down New Contempt of Court Act

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(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 no

discussion 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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