Contempt and defamation are two sections of law. A distinction must be made between contempt of court and defamation against a judge in his personal capacity. If someone delivers defamatory speech or makes defamatory remarks against a judge in his personal capacity, the aggrieved judge shall have to file a suit for defamation against the alleged contemnor in his personal capacity, but not as a judge.
However, where the purpose of defamatory statements is to interfere with the dignity of the court and interference in the administration of justice, such statements would be treated as contempt of court. Defamation is defined as “Any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which injures the reputation of a person tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation.”
On the other hand, there are three types of contempt, such as civil contempt, criminal contempt and judicial contempt. Civil contempt means the wilful flouting or disregard of (I) an order, whether interim or final, a judgement or decree of a court, (II) a writ or order issued by a court in the exercise of its constitutional jurisdiction; an undertaking given to and recorded by, a court (III) the process of a court. Criminal contempt means the doing of any act with intent to or having the effect of, obstructing the administration of justice. Judicial contempt means the scandalisation of a court and includes personalised criticism of a judge while holding office. The phrase ‘contempt of court’ (Contemptus Curiae) has been in use in English Law for the last eight centuries. The law conferred the power to enforce discipline within its precincts and punish those who fail to comply with its orders.
In England, before the end of the twelfth century, contempt of court was a recognised expression and applied to the defaults and wrongful acts of suitors. Contempt of court is an act or omission, which interferes with the due administration of justice. As such, contempt is a criminal offence; even more so, it is a sui generis criminal offence. Not only is the power of contempt, one of uncertain scope, unlike any other criminal offence, but it is also exercised according to a summary procedure, which is unknown to United Kingdom’s Law.
Despite this fact, the law of contempt is no longer as untouchable as it once was; the influence of the case law of the European Court of Human Rights, which was further enhanced by the enactment of the Human Rights Act, 1998, has led to a re-evaluation of the general principles, which govern the law of contempt. Any interference with the right to freedom of expression must be necessary for a democratic society, according to Article 10 of the European Convention on Human Rights. During the PTI’s rally held in Islamabad, on 20.08.2022, the party chief, Imran Khan made a controversial statement warning Zeba Chaudhry, the Additional District & Sessions Judge, of taking action against her, and said “have some shame”.
To determine whether the statement is defamatory or contemptuous, a distinction must be made between defamation and what falls within the ambit of contempt of the court. For this purpose, there are guidelines formulated in the case, titled as, Perspective Publication Pvt. Ltd. v. the State of Maharashtra, reported as, (1969)2 SCR 779 at p. 791-792. As per these guidelines: “It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful even though outspoken, comments of ordinary men.”
Also, there is a test to determine whether the controversial statement of Imran Khan was a mere defamatory attack on the Sessions Judge or it was calculated to interfere with the proper administration of justice. Only where it is the latter case, it will be punishable as contempt. It can alternatively be tested whether the wrong is targeted at the judge, personally, or it is done to the public. As per case law (AIR 1954 SC 10), “a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.”
A study of various high-profile contempt cases, in which the contemners were convicted, reveals that Imran Khan’s remarks have no comparison with the derogatory comments given by the convicts or the court orders they refused to obey. On 26.04.2012, a seven-judge bench of the August Supreme Court of Pakistan, headed by Mr Justice Nasirul Mulk, convicted the (then) prime minister of Pakistan, Yusuf Raza Gilani of contempt and sentenced him until the rising of the Court. Flouting the Supreme Court orders, Mr Gilani had refused to write a letter to the Swiss Government for reopening of a case against the (then) President of Pakistan, Asif Ali Zardari, saying the Constitution grants the president immunity from criminal prosecution.
However, in Imran Khan’s case, he has not flouted any court orders but rather made remarks in the mildest form of defamation against a lower court judge. It is pertinent to mention that ahead of the August 20, 2022 meeting, the PTI chief held a meeting with his legal experts and unambiguously stated that he had no intention to criticise the judicial official.
Under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Entry 55 of the Fourth Schedule ibid, only the High Courts and the Supreme Court had powers to punish any person found guilty of contempt of court falling within the definition of contempt of court given in Clause (2) of Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Section 3 of Contempt of the Court Ordinance, 2003. The definition of the word ‘judge’ as including all officers acting in a judicial capacity in the administration of justice is contrary to Article 204(1) of the Constitution of the Islamic Republic of Pakistan, 1973. This is against the constitution as, under the latter provision, the court means the Supreme Court or a High Court.
The acts of contempt liable to be punished mentioned in Article 204(2)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 and some actions of contempt of court falling under Article 204(2)(c) ibid have been omitted from the definition of contempt of court given in Section(s) 2 and 3 of the Contempt of Court Ordinance, 2003. The Contempt of Court Ordinance, 2003 has been promulgated under Clause 3 of Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 which confers power on the legislature to make a law to regulate the exercise of power by courts, and not to incorporate any substantive provision or defences as it has been done in the proviso.
Following are some judgements about the matter in discussion:
1. In contempt of Court there must be involved some “act done or writing published calculated to bring a court or judge of a court into contempt or to lower his authority” or something “calculated to obstruct or interfere with the due course of justice or lawful process of the Court.” (PC) PLD 1951 PC 23 Arthur Regionald Perera v. King.
2. Fair comment and/or criticism of the judge, by itself, is not contempt. Criticism which interferes with the administration of justice by shaking public confidence in courts or by scandalising the court is indictable. (SC) PLD 1961 C 237 Snelson, (SC) PLD 1977 SC 482 Yousaf Ali.
3. The courts are not entitled to silence the truth; judges are not immune from all criticism. A plea of bias in the judge temperately worded and pressed in a respectful manner and without any publicity does not amount to contempt. PLD 1977 SC 482 Yousaf Ali Khan.
4. Judges and courts are open to fair criticism. (DB) PLD 1961 Lah. 51 State v. Abdul Latif.
Meanwhile, hundreds of thousands of people carrying placards inscribed with extraordinarily bold, vulgar and fragrantly obscene slogans took to the streets across the United States after the Supreme Court voted to overturn Roe v Wade, the landmark ruling that legalised abortion in the United States nearly 50 years ago. But there is no reporting about the initiation of any contempt proceedings against the protesters.
Importantly, Section 18 of the Contempt of Court Ordinance, 2003 clearly says “No person shall be found guilty of contempt of court, or punished accordingly unless the court is satisfied that contempt is substantially detrimental to the administration of justice or scandalises the court or otherwise tends to bring the court or Judge of the court into hatred or ridicule.”
Because of the substantial detrimental clause provided in Section 18(I), the statement of Imran Khan is not substantially detrimental to the administration of justice nor scandalises the court; rather it depicts the mildest form of defamation.