The “rule of law” is the basic principle of governance of any civilised and democratic society. The principle asserts the supremacy of law bringing under its purview everyone, individuals, and institutions on par without any subjective discretion. Among other organs, the judiciary being the guardian of the rule of law holds a key position, for it is deemed as not only the third pillar but the central pillar of democracy.

To facilitate the judiciary to perform its duties and functions effectively, the dignity and authority of the courts have to be respected and protected at all costs. The freedom of expression guaranteed under the constitution and the independence of the judiciary are the two basic and most important constituents of a democracy.

Constructive criticism is the most important ingredient for the development of democracy and the Supreme Court should protect free speech. But where to draw the line? When the criticism has the tendency of lowering the authority of the judge and even obstructing the administration of justice, the Court has the power to punish any such act which tends to demean the value of judiciary under Article 204 of Constitution of Pakistan 1973 & Contempt of Courts Ordinance, 2003.

The law of contempt has been enacted to secure public respect and confidence in the judicial process. The Contempt of Court jurisdiction is exercised not to protect the dignity of an individual judge but to protect the administration of justice from being maligned. Thus a defamatory attack on a judge may be libel so far as the judge is concerned and it would be open to him to proceed against someone commiting libel in a proper action if he so chooses.

But in case of publication of the disparaging statement that is calculated to interfere with the due course of justice or proper administration of law, it can be punished summarily as contempt. Freedom of the press, liberty of speech and action; areas they do not contravene the law of contempt are to prevail without let or hindrance.

But at the same time, the maintenance of the dignity of the courts is one of the cardinal principles of rule of law in a free democratic country, and when the criticism which may otherwise be couched in language that appears to be mere criticism results in undermining the dignity of courts and course of justice in the land it must be held repugnant and punished. No court can look with equanimity on a publication that may tend to interfere with the administration of justice.

Silence and steady devotion to duty are the best answers to irresponsible criticism. The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. The dangers must not be remote or even probable; they must immediately imperil.

The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. The discipline of law must be followed but at the same time, it must be kept in mind that the jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression.

This is the cause for which it is said that contempt law should be most jealously and carefully applied and the power is to be prudently exercised with the greatest reluctance and if, after taking into account all the circumstances the Court finds contempt of Court beyond condonable limits, then the strong arm of the law must be used in the name of the public interest and public justice. According to Lord Atkin, “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

Shahrukh Mehboob
The writer is Legal Practitioner and columnist. He tweets @legal_bias and can be reached at shahrukh
mehboob4@gmail.com.