PUNJAB UNIVERSITY LAW COLLEGE

ASSIGNMENT OF CONSTITUTIONAL HISTORY

7TH SEMESTER
ROLL NO. 32
SUBMITTED BY: KIRAN

SUBMITTED TO : SIR TAIMOOR KHAN

DATE OF SUBMISSION: 19-JAN-2018
What does contempt of court mean?
How has this concept evolved?
What are its dimensions?
Is this power now abused and correlate the judicial precedents of Pakistan on this issue with
respect to other countries?

INTRODUCTION:

Firstly , I will describe what contempt actually is and then contempt of court with reference to
the S. 204 of the Constitution of Pakistan 1973. Which acts comes under the contempt charges
and which are protected and are exempted from the contempt cases. Then will go back to the
history, from where this concept of punishing who ridicule or interrupt the judicial proceedings
emerged and cases which initially enshirened this very concept and how it comes down to
Pakistan and an Ordinance is passed on this issue in 2003. Civil , criminal and judicial contempt
and different cases which are related to contempt matter decided in Pakistan and in other
countries, which shows the importance of respect of judiciary and compliance with the orders of
the courts passed by courts.

CONTEMPT OF COURT

CONTEMPT is when you feel someone or something is worthless or you have no fear to that.

CONTEMPT OF COURT:

In legal connotation it signified disrespect to that which is entitled to high legal regard. Any
conduct that tends to bring the authority into disregard, or interfere , or prejudice parties,
witnesses or publishing improper attacks on judiciary.

Article 204 of constitution of 1973;

“204. Contempt of Court. — (1) In this Article, “Court” means the Supreme
Court or a High Court.
(2) A Court shall have power to punish any person who-
(a) abuses, interferes with or obstructs the process of the Court in any way or
disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the
Court or a Judge in relation to his office into hatred, ridicule or contempt; or
(c) does anything which tends to prejudice the determination of a matter pending
before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
 (3) 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.”

Art 204 should be read without any preconceived notion. It empowers the court to punish any
person who commits any of the acts specified in sub-clauses (a, b, c, d).

The exercise of the power conferred on a court by Art 204(3) of the constitution might be
regulated by law and subject to law by rules made by the court , but it did not mean that a statue
could control or curtail the power conferred on the superior courts under the said article nor in
the absence of a statue on the subject, and the said Article would be inoperative. [PLD 2012 S.C.
923]

 Masroor Ahsan v. ARDESHIR COWASJEE AND OTHERS

[PLD 1998 SC 823]
Petition was filed against the contempt of court Act 2012 becacuse I was in violation of
Articles 2-A, 9, 14, 25 and 204. sub clause (i) of the proviso of Section 3 of the Act, 2012
curtails the power and the jurisdiction of the Court. COCA 2012 is ultra vires Article 204 of
the Constitution being against the independence of judiciary as enshrined in Article 2A,
denial of access to justice under Articles 4 and 10A as by granting immunity to the public
office holders, it has created a distinction between such office holders and ordinary
contemners. Contempt of Court Ordinance 2003 was holding the field before the
promulgation of COCA 2012, therefore, the repealing clause being a nullity in the eye of law
and COCA 2012 as a whole is void ab initio and non est with its consequences.1

 Manhandling of Hon’ble CJ of Pakistan

[ PLD 2007 S.C. 688]
Contemners were found guilty of contempt of court, it fall under Art 204 (2)(b) which
provides punishment for who scandalize the court or does anything which tends to bring
the court or judge into hatred, ridicule or contempt. Manhandling of the Chief Justice
would amount to disrespect of the judiciary of the country.

 Non compilence with the direction of the court is contempt of court.

 CASE LAW: [2004 P.Cr.L.J. 391]

Injuries on the son of petitioner having not been denied. Local police should first proceed in the
matter under S. 154 Cr.P.C . and thereafter information provided by the petitioner found false,
case should have been cancelled and proceedings against him should have been initiated in
accordance with the law in case of non compliance of the order of the HC.

 In some jurisdictions, the refusal to attend the court when summon, to testify or to
provide certain information can constitute contempt of the court. US has an exception to
the rights of personal safety related to testimony.

1
www.dawn.com
  CASE LAW:Moore v Clerk of Assize, Bristol,2

where a fourteen-year old girl, who had given evidence in a case where men had been charged
with affray, was reproached and threatened by the brother of one of them, the English Court of
Appeal upheld a three-month sentence of imprisonment for contempt. Lord Denning MR said:

“The court will always preserve the freedom and integrity of witnesses
and not allow them to be intimidated in any way, either before the trial,
pending it or after it .... It is a contempt of court to assault a witness after
he has given evidence; it is also a contempt of court to threaten him or
put him in fear, if it is done to punish him for what he has said.”

 Law does not prohibit proceedings under sec 204 against the respondent even though
they might be the judges. They are not immune from the proceedings for committing
contempt.
 The State v. Muhsin Tirmizey [ PLD 1964 (WP) Lahore 434]

Respondent found guilty for the contempt of court. In this case court observed that the
remarks made by an authority in its administrative function. Respondent Muhsin Tirmizey
the then district and session judge, Dera Ghazi Khan wrote a letter to the chief secretary to
the govt. of West Pakistan , containing objectionable remarks against the Lahore HC, which
were read by the chief secretary and others who delt with it in the course of their duties.

 In Benazir Butto case against president of Pakistan for dissolving National Assembly,
one of the grounds of dissolution was the non-compliance with the order of Supreme
court in Al-Jehad trust foundation case, that executive failed to enforce the decision
of SC. Such non-compliance fall within the ambit of contempt of court.

 Contempt alleged againt said person was primarily consequent to issuance of the three
instruments viz. proclamation of emergency , PCO 2007 and oath of office (judges)orders
2007 and thereby launching an assault on the independence of the judiciary. Supreme court’s
seven member bench passed an order on 3-11-2007. Disobedience of restraint order by taking
oath under PCO 2007 and oath of office (judges) order 2007. Judges who violated the order
had all rendered themselves liable for consequences under Art.204 of constitution. Notices
were issued to all the judges who were appointed b/w 3 Nov and 15 Dec, 2007.

Contempt proceedings are especially used to enforce equitable remedies, such as injunctions.3

2
[1972] 1 All ER 58 (CA, 1970).

3
Bray, Samuel (2014). "The Myth of the Mild Declaratory Judgment". Duke Law Journal. 63: 1091. SSRN 2330050
  Contempt of court includes the following behaviours:
 Scandalizing the court itself
 Abusing parties who are concerned
 Prejudicing the public

 Willfully disobeying a process or order of the court

 Interfering with the orderly administration of justice
 An officer of the court failing to perform his or her duties

 Contempt proceedings can neither be initiated at the desire of litigating party. Court have
to be satisfied that the certain act of respondent would come within the mischief of the
law or amount to interference with the interference of administration of justice.
 Speeches of members of National Assembly enjoy qualified priviledge .
 Publication of substantially accurate account of legal proceedings shall not constitute
contempt of court.
 Fair comments on decided judgement involving question of public importance shall not
constitute contempt.
 One cannot be found guilty of disobedience of an order which is nullity in the eye of
law.4
 observations made by a higher or appellate court in a judicial order or judgment
 a true statement without intent to scandalize a judge regarding his conduct in a matter not
connected with the performance of his judicial functions.5

PROCEEDINGS:

Proceedings in contempt cases are species of its own kind , nor civil nor criminal but
quasi criminal. There is no fix formula for this. Proceedings shall be commenced by the
issuance of a notice or a show cause notice , at the discretion of the judge.

THE PURPOSE:

The law of contempt is one of many ways in which the due prosseses of law are supported .
The very purpose of it is the vindication of dignity and honour of the court. It is essential to
the maintenance and for the existence of the legal system of any state , courts should have
the ample power enforce its orders and protect itself and abuse of itself .

1) The necessity of maintaining faith of the people in the dignity and uprightness of the
courts,
2) To protect the presiding officers from intimidation so that justice could be administered
without any fear and doubt.

4
PLD 1997 S.C. 351
5
the-contempt-of-court-ordinance-2003
 but nowadays, actual proceedings for contempt are in practice rarely brought, except in
the clearest cases.

HISTORY:

They certain have a long history in our common law, contemptus curiae is recognized phrase
in English law since the twelfth century .6
Bracton said:

“There is no greater crime than contempt and disobedience , for all persons within the realm
ought to be obedient to the king and within his peace.”

In the history when government and the courts have been in jeopardy , the law of contempt
of court particularly criminal one assumed a special significance . It procedures and sanction
have come down to us over century of use and applications. Judges in common law systems
usually have more extensive power to declare someone in contempt than judges in civil
law systems. The jurisdiction to punish for contempt was enjoyed by the superior court under
the common law of England . It was an inherent jurisdiction . The reason for the existance of
the jurisdiction was that unless court were armed with such a jurisdiction they could not
properly function . No hard and fast rule could be laid down as to the circumstances under
which a certain act would amount to contempt of court.

 For the first time it was Wilmot, J.,who pronounced the law of the subject in the case
of
 Rex .v. Almon,

Almon the book seller published a libel on Lord Mansfield, CJ .

The judgment of this case is the cornerstone of the law on the subject:

“The power which is the courts in westminter hall have of vindicating their own authority is
coeval with their foundation and institution; it is a necessary incident to every court of
juistice , whether of record or not, to fine and imprison for a contempt to the court, acted in
the fact of it.”7

It was followed by successive courts in constitutional authorities not only in England but also
in America . Before 1926, contempt law was governed by the precedents established in
English courts.

History of the law in India was traced in the case of state v. Padma Kant Mlaviya.8

Before commencement of Government of India Act 1935, courts of India had power, to
punish contempts of themselves and judges. The Government of India Act 1935, continued this

6
Fox, op. p. 1.
7
R. v. Almon, (1765) Wilm. 243 at p. 254.
8
1954 Cr. L.j. 1141 (F.B.).
power and special summary jurisdiction to the various High Courts then existing.9 ( Gurubaaksh
Singh v. S. Partab Singh, A.I.R 1959 Punj. 182)

It would be advantageous to note the Contempt of Court Act (XII) of 1926 was the initial statute
on the subject, which remained applicable until it was repealed by the Contempt of Court Act
(LXIV), 1976 , promulgated after the enforcement of the Constitution of 1973. In the
Constitutions of 1956 and 1962 , provision to punish for contempt of Court was made. Article
123 of the Constitution of 1962 provided for punishment for contempt of Court, which is pari
materia with Article 204 of the Constitution of 1973.10

DIMINSIONS:-

Contempt of Court Ordinance ,2003 defines that contempt of court is of three types, namely,
Civil contempt, Criminal contempt and Judicial contempt. And defines these in its S.2

a) CIVIL CONTEMPT:
means willful flouting or disregard of
I. An order,whether interim of final, a judgement or decree of a court
II. A writ or order issued by a court in exercise of its constitutional jurisdiction
III. An undertaking given to and recorded by a court
IV. The process of a court11

Civil contempt can involve acts of omission. The judge will make use of warnings in most
situations that may lead to a person being charged with contempt. For example, If a person does
not comply with the order or does not provide the documents, he is liable to attach. If he
disobeys the order of habeas corpus, application may be made to the Court, for contempt.12

Constructive contempt, also called consequential contempt, is when a person fails to fulfill the
will of the court as it applies to outside obligations of the person. In most cases, constructive
contempt is considered to be in the realm of civil contempt because of its passive nature.

The purpose of the civil contempt sanctions is to restore the rights of the party who has been
wronged by not fulfiling the order of the court.

9
IYER’S law on contempt of courts at p. 54
10
https://www.dawn.com/news/739467
11
The Contempt of Court Ordinance 2003

12
Order 84, rule 12. See also Re Fitzpatrick, an Infant, IR 6 CL 507 (QB, Barry J, 1872), Re Earle, [1938] IR 485
(Sup Ct, 1937), Egan v Macready, [1921] 2 IR 265 (O'Connor MR).
Proceedings for civil contempt may be initiated suo motu or at the instance of an aggrieved
party.

CRIMINAL CONTEMPT:

Criminal contempt includes anything that could be called a disturbance, such as repeatedly
talking out of turn, bringing forth previously banned evidence, or harassment of any other party
in the courtroom.13 The maximum sentence for criminal contempt is two years. (ENGLAND)

According to the Contempt of Court Ordinance 2003, Criminal contempt means the doing of any
act with intent to, or having the effect of, obstructing the administration of justice.

It can occur in civil or criminal cases. A criminal contempt shall be deemed to have been
committed , if a person attempts to influence a witness to not to give evidence or offers an
improper inducement to a judge to get the decision in his favour.

Cognizane of criminal contempt be taken as suo motu or on the application of the person
connected with the proceedings in which contempt has been committed or on the application of a
law officer.14

Civil contempt Criminal contempt

Failure to perform an act ordered by the court Behavior that assaults the dignity of the court

Violation of the rights of a person Offence against society

Courts use it as a coercive power Punitive

JUDICIAL CONTEMPT:

It means the scandalization of court and personalized criticism of a judge while holding of office.

Acc to contempt of court Ordinance 2003, S. 11

A superior Court may take action in a case of judicial contempt on its own initiative or on
information laid before it by any person with in one year. And he will not hear it by own but
refer to CJ, and if he himself is the Chief Justice then he will refer to the senior most judge.

Contempt of court may be "direct" or "indirect."

intended toembarrass or engender disrespect for the court. Shouting in the courtroom or refusing
to answer questions for a judge or attorney under oath is a direct contempt. it occurs in the face
of court and in this case the court may the cause the contemner to be detained in custody and
may proceed against him in any manner, S. 13 of COCO 2003.

13
Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from, Law.dictionary.com Web site.
14
The Contempt of Court Ordinance 2003 , Sec 7
Indirect:
its intention is also to belittle, mock, obstruct,interrupt, or degrade the court and its proceedings.
E, g. Attempting to bribe a district attorney. It occurs outside the court.

PUNISHMENT:

Subject to sub-section 92 any person who commits contempt of court shall be punished with
imprisonment which may extend to six months simple imprisonment, or with fine which may
extend to Rs 100,000, or with both.15

A person who has committed contempt can submit an apology at any stage and if the court
satisfies, may discharge or remit his/her sentence.

ABUSES:-

 Morris v The Crown16

a group of students from the University of Aberystwyth, in the High Court in London.

They strode into the well of the court. They flocked into the public
gallery. They shouted slogans. They scattered pamphlets. They sang
songs. They broke up the hearing. The judge had to adjourn.

Lord Denning, MR observed:

“Here was a deliberate interference with the course of justice in a case

which was no concern of theirs. It was necessary for the judge to show –
and to show to all students everywhere – that this kind of thing cannot
be tolerated. Let students demonstrate, if they please, for the causes in
which they believe. Let them make their protests as they will. But they
must do it by lawful means and not by unlawful. If they strike at the
course of justice in this land – and I speak both for England and Wales –
they strike at the roots of society itself, and they bring down that which
protects them. It is only by the maintenance of law and order that they
are privileged to be students and to study and live in peace. So let them
support the law and not strike it down.”

15
The Contempt of Court Ordinance 2003

16
[1970] 1 All ER 1079 (CA).
  Syed Aftab Ejaz v. The state [PLD 1978 Lahore 361]

In this case the learned High Court held that in a case of contempt of court the plea of intention ,
however , good it may be connot provide defence for flouting the order of the court , because the
order of the court is to be strictly complied with and its compliance is a matter of strict liability.

 Sir Krishna Singh V. Mathura Ahir [(1984) 4 SCC 421]

In this case a decree was passed against the petitioner for delivering the possession of the
property to the plaintiff which was maintained ultimately by the indain high court , adjudging
that the petitioner Sri Krishna Singh and others were trespasser and were directed to be evicated
from the property in question but despite of it, possession was not delivered in utter disregard of
supreme court ‘s order and trying to delay or defeat the court’s decree for delivery of possession
by adopting ingenious devices and subterfuges , therefore , proceedings were ordered to be taken
against him for contempt of court.

 X.Ltd. and another v. Morgan Grampian (publishers)Ltd. And others . [(1990) 1 All E.R.616]

In this case it is held that right of audience can be declined to contemnor who not only refuced to
obey the order made by the court but also rejected the authority of the court to make an order
binding on him.

 Rana Muhammad Akram Khan v. The state . [1993 P.Cr. L.J. 2044]

In this case it is held that disobedience or noncompliance of an order passed by the High Court
wheather intentionally or negligently and that too by a public functionary amounts to a contempt
of court.

 M.F.M.Y Industries Ltd V. Collector of Customs [PLD 1996 Karachi 542]

Learned counsel contended that in this judgment it has been held that it is totally unprecedented
that a department would await the advice from the administrative agency before the
implementation of the order , as it had happened in the instant case that the concerned collector
instead of refunding the amount , approached the CBR to avoid the effect of the judgment .
therefore . the strictly in accordance with the observation made in this reported judgment instant
application has been filed for the proceedings of contempt of court.

 Naveed Nawazish Malik v. Ghulam.Rasool Bhatti [1997 SCMR 193]

It is held in this case that to disobey or disregard an order , direction or process of court which a
person is legally bound to obey, willful breach of any undertaking given to a court,any act
intended to or which tends to bring the authority of the case or the administration of law into
disrespect or disrepute and to obstruct , interfere , interrupt or prejudice the process of law or the
due course of any judicial proceedings fall within the category of contempt of court.

 Government of Sindh v. Muhammmad Hussain [2000 SCMR 1241]

In this case the concerned officers instead of implementing the order thought that filling of
review operates automatic stay but this court abserved that the afficials concerned , prima facie,
found guilty for contempt of court for having failed to implement the order of this court.

 CRIMINAL ORIGINAL PETITION NO. 06 OF 2012

IN SUO MOTU CASE NO. 04 OF 2010

(Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan
regarding non-compliance of this Court’s order dated 16.12.2009)17

It is submitted on behalf of the petitioners that the competent authority of the Federal
Government failed to implement the judgment despite express directions of this Court.
The PM Gillani refused to reopen corruption cases against the president Zardari. A suo
motu notice was taken by this Court of a news item. A seven-member bench, headed by
Justice Nasirul Mulk announced the verdict and convicted him, Under Article 204 (2) of the
Constitution of of Pakistan, 1973, read with Section 3 of the Contempt of Court Ordinance 2003
for wilful flouting, disregard and disobedience of this court’s direction contained in the judgment
delivered in the case of Dr Mubashir Hasan versus the Federation of Pakistan (PLD 2010 SC
265)18.

17
http://www.supremecourt.gov.pk/web/user_files/File/Crl.O.P.6of2012.pdf
18
https://tribune.com.pk/story/370128/pm-contempt-escorted-by-entourage-gilani-walks-to-sc/