An overview of the new Contempt of Court Act

The term contempt of court is indicative of a judicial order that imposes sanction, fine or even jail to the person who tends to interfere with the administration of justice. A person may be found guilty as such when his action amounts to lower the authority of the court of law. It is the most powerful legal tool in the hands of the presiding officer of a court to dispel the person who directly or indirectly disrupts the course of justice. A contempt of court may emanate from a failure to obey the lawful directions of a court, showing disrespect to the judges/ judiciary, scathing reporting /comment on pending cases, publication of article, broadcasting on court proceedings which likely to impede fair trial. The common law judges enjoy wide power of imposing sanction to contemnor than their counterparts in civil law regime.
A New Statute: Of late, a new Contempt of Court 2013 has set in motion repealing the age old Act of 1926. The passing of the present law was long overdue. It was argued by many scholars that the abysmally subtle statute was enacted only to serve the colonial rulers. On a cursory look, the present legislation also appears to have traveled beyond the basic notions of jurisprudence. Interesting to note, though most of the Bangladeshi laws are enacted in view and shadow of Indian laws, present law appears to be quite peculiar.
The present statute contains at total 20 sections. Section 2 defines few legal terms. It divides contempt into either civil or criminal [S. 2(6)]. It also defines two types of contempt elaborately [S. 2(8)]. It declared that no publication is contempt if it is done in good faith [S. 4(1)]. The highest punishment to be imposed for contempt of court is six months' simple imprisonment or fine or both [S.13].
Regarding the freedom of media, the statute states that true and accurate reporting of court proceeding is not contempt [S. 5]. Specific provision for the protection of freedom of press under certain circumstances appears to be praiseworthy.
Freedom of press is an explicit fundamental right in which a reasonable restriction may be imposed (Article 39). It includes the right to publish information about pending cases. As such, there is heated debate between freedom of press and the right of the accused to fair trial which itself is an unfettered fundamental right (Article 35). 'Our press often does not restrain itself in reporting crimes and trial of the offences, much to the anguish to person suspected'. It is recognized in most democracies that, publications which refer to character, previous convictions, and confessions could be result to contempt. Publishing photographs may hinder proper identification in Test Identification Parade. There are other aspects such as judging the guilt or innocence of the accused or discrediting the witnesses etc. which would be contempt. Media interview of potential witnesses or accused may sometimes be subject of contempt. Though such statutory attempt is better than the worst, detailed provisions containing protection of the victim, witnesses should have been enacted. Though traditional view is that unlike jury system the judges are impervious to the media reports about the pending cases, such avenue still requires to be addressed in the statute as excessive media coverage may affect the fair trial. Media has every right to make fair report on judiciary that is encumbered with backlog of pending cases, inordinate delay, lethargic prosecution, numerous adjournments etc. which will rather act a catalyst to ensure speedy justice. The media should never parallel trial, rather it complement the judiciary. In this way, the distinction between media activism and aggressive journalism should be clearly maintained. It is also observed that Press Council Code and the Broadcasting Code are silent on guidelines on reporting court procedure.
An intriguing feature of the statute is that any bona fide comment/ statement directed towards the presiding judge of the subordinate court is not contempt of court [S 6]. Such provision fails to appreciate the fact that subordinate judiciary, being courts of first instance, at times may come under attack from disgruntle persons. A court, how high or small it is, has inherent power to take step for the contemnor for the administration of justice. Such provision may obliquely encourage the unhappy litigants to challenge the authority of the lower court. Mind it, it is not possible for the presiding judge to appease both contesting parties in the same verdict. Under the constitutional scheme subordinate judiciary is part and parcel of the judiciary. Therefore, any contemptuous attack (oral, action, broadcast) directed at the courts of lowest grade will amount to injury to the whole judiciary. And, parliament can in no way take away such inherent power of the court. For example, notwithstanding the presence of Contempt Court Act 1981, the common law contempt power of English Court is in vogue. It appears that Section 9 obliquely excludes the courts' power of imposing punitive action in any action amounting to contempt other than statutory contempt.
Section 10 tends to exonerate the delinquent government officials who may be accused of contempt court. Such provision may offer a relief to the person discharging their governmental duty. However, certain judicial checks in form of contempt of court may be essential to deter the administrative excesses.
Section 11 denies the court's inherent power to compel the physical appearance of the contemnor at the first instance. Section 13(2) made specific guidelines to the court to exonerate the convict contemnor who seeks apology before the court. Such insertion appears to be redundant given that the High Court Division alone is empowered to deal with the issue. Further, it goes against the basic tenet of law that the moment a court passes an order, it cannot pass any further order afterwards save any clerical correction etc. After passing an order the court becomes functus officio. Furthermore, the intention of seeking apology by the convict may be questioned in the premise that after trial the convict essentially offers amends not from his heart, rather he is compelled to say apology from his lips only. It may be mentioned here that apex court did not exonerate a former Inspector General of Police who was not vigilant enough to offer his unconditional apology at the earliest opportunity.
A court possesses the inherent ability to punish one who interferes, in any way, with the proper functioning of the court system. 'In applying the law of contempt of court a balance should be made between the freedom of expression and the need to maintain the authority of the court' [Moinul Hosein v Sheikh Hasian Wazed (2001)53 DLR 138]. A Division Bench (of the High Court Division) comprising Justice Dr Quazi Reza-ul Hoque and Justice ABM Altaf Hossain issued a rule on the authorities concerned asking them to explain why the insertion of eight sections of the Contempt of Court Act, 2013 should not be declared ultra vires of the Constitution. We are eager to see how the superior court ultimately disposes of the issue.

The writers are LLM graduate and Barrister respectively.