Discusses the distinction between civil contempt and criminal contempt. Considers the problems entailed with the Contempt of Court Act 1926. Notes how the law on contempt of court has developed in other countries. Discusses the various laws that governed the contempt of court law in Bangladesh alongside the Contempt of Court Act 1926. Considers the changes introduced by the Contempt of Court Act 2013 and analyses the reforms in the light of the decision passed in the Appellate Division case of Advocate RiazUddin Khan v MahmudurRahman and the High Court Division case of Advocate Asaduzzaman v Bangladesh and others.
One of the fundamental principles of the rule of law which governs this country is that no one is above the law. Consequently, to seek to be wiser than the laws is forbidden by the law.According to the law of contempt of court, any infringement with the court of justice, any obstruction caused in the way of those seeking justice and any non-compliance with the orders of the Court is treated as an offence with adverse consequences for the contemnor.Over the years, the law in this regard has undergone great changes which were primarily aimed at clarifying and elaborating it but recent court decision by the High Court Division has shed doubt into whether or notsuch changes have been successful in achieving its goal.
For the purpose of understanding the law on contempt of court, it is highly important to acknowledge the difference between a civil contempt and a criminal contempt.Civil contempt is generally a private contempt which affects a private person, as for instance, where a part fails to obey an order or decree of court made for the benefit of such private person. Contrarily, criminal contempt is a public contempt where a conduct is directed against the dignity and authority of the court and is in disrespect of the court or its processes or which obstruct the administration of justice or tend to bring the court into disrespect. Criminal contempts are punitive in nature, prosecuted to preserve the power of courts and to punish the offender. In civil contempt, the case is not punitive, but executive, and the punishment is to commit the offender under he complies with the order of the court and hence is remedial in nature.In a criminal contempt, the vindication of public authority and the majesty of the law is the sole purpose of the punishmentwhereas in a civil contempt, punishment is imposed for the primary purpose of making the order of the court effective and followed accordingly. An instance of civil contempt is to refuse or neglect to do an act required by a judgment or order of the court within the time specified in the judgement or order.An example of criminal contempt may involve non-attendance by a person in obedience to a summons made by a public servant or threatening witnesses.The question of whether or not a contemptis a criminal or civil contempt does not necessarily depends on the nature of the court to which the contempt was displayed; it depends on the nature of the conduct.
For nearly nine decades, the law governing the Contempt of Court in Bangladesh was regulated under the Contempt of Court Act, 1926. However, the earlier Act had a number of key problems which necessitated the recent repeal by the Contempt of Court Act, 2013.It was contended by the Bangladesh Law Commission in itsReport on a Reference by the Government for repeal, re-enactment and modernising Contempt of Court Act, 1926 (Act XII of 1926)that the Contempt of Court Act 1926 was not meant to be a law on contempt but rather its purpose was to empower the then High Courts of India and the present High Court Division to punish contempts of subordinate courts. This analysis does bear strong significance as demonstrated by the fact that the 1926 Act only consisted of three substantive sections of law with no attempt to define the term “contempt” itself and also no detailed provision explaining court procedure and elaborating the law in this regard. The substantive sections of this Act were highly restricted to the then High Courts’ power, procedure and limit of punishment for contempt of subordinate courts.
Unlike Bangladesh, the law on contempt of court in other countries developed at a different pace.
India, for instance, decided to replace the Contempt of Court Act 1926 Act in 1952. Later, a Special Committee was formed in 1961 under the chairmanship of the late H N Saynal following which the Indian Parliament enacted the Contempt of Courts Act 1971 incorporating the accepted recommendations of the Saynal Committee.The new Indian law provides for a definition of the term and set outs the current legal framework for such matters.
The UK, on the other hand, felt the immediate urge for enacting the Contempt of Court Act, 1981 after the European Court of Human Rights’ case of Sunday Times v United Kingdom where it was held that the House of Lords’ decision in Attorney General v Times News Paper Ltd was contrary to Article 10 of the European Convention on Human Rights.However, the 1981 Act does not define, classify or limit contempt. The law of contempt in England is still generally governed by the common law.
In Australia, the law of contempt of court is regulated by common law in similar fashion as it did in England and Wales before the Contempt of Court Act 1981, and does not vary considerably among the states with certain statutory codifications existing in particular states.
Although it is true that the Contempt of Court Act 1926 was a relatively short Act to govern such a vast area of contempt law, Bangladesh did indeed have supplementary legislative laws to alleviatemany of its problems.
Firstly, the Penal Code, 1860 (hereinafter “the Code”)contain numerous provisions relating to contempt of court.Section 228 of the Code makes it a criminal offence for anyone to intentionally insult or interrupt a public servant while such public servant is sitting at any stage of a judicial proceeding.Moreover, if any person conducts himself in a way which obstructs the administration of justice, sections 172-188 of Chapter X of the Code and sections 193-196, 199, 200, 205, 207-211 and 228 of Chapter XI of the Code provides for a range of instances to punish such person.
Secondly, section 195 of the Code of Criminal Procedure, 1898 (hereinafter “CrPC”) sets out the provision for prosecution for contempt of lawful authority of public servants, prosecution for certain offences under the Code against public justice and prosecution for certain offences relating to documents given in evidence.
The Constitution of the People’s Republic of Bangladesh (hereinafter “the Constitution”) is another important source for the law on contempt. Under Article 78 of the Constitution, members of the Parliament have been accorded with special privileges and immunities from court proceedings to ensure the effective operation of the proceedings in Parliament.Article 108 of the Constitution provides that “the Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.” This Article has been the guiding principle for the Supreme Court of Bangladesh in any case involving contempt of court.
The next important legislation that falls relevant for our consideration is the Code of Civil Procedure, 1908 (hereinafter “CPC”). Section 135 of the CPC grants the Judge, Magistrate or other judicial officer exemption from arrest under civil process while going to, presiding in, or returning from, his Court. In addition to the privileges under Article 78 of the Constitution, section 135A of the CPC provides exemptions to members of legislative bodies from arrest or detention under civil process.Moreover, Order 16, rules 10-12 of the CPC lays down the procedure to be followed where a witness fails to comply with a court summons and provides the court with extensive power to make orders of attachment of property and fine. Further powers accorded to the court in regard to ensuring the proper execution of a decree passed by it are set out under Order 21, rules 30-32 of the CPC. Where a party fails to obey an injunction order, Order 39, rule 2(3) of the CPC confers power upon the court to make order for detention of such person in the civil prison for a term not exceeding six months. Furthermore, where it appears to the court to be “just and convenient” the court may make an order for appointment of a receiver of any property in dispute.
Lastly, under section 10A of the Administrative Tribunal Act 1980, the Administrative Appellate Tribunal possesses the power to punish for contempts of its authority or that of any Administrative Tribunal in a manner similar to that of the High Court Division of the Supreme Court.
It is now pertinent to consider the effectiveness of the Contempt of Court Act 2013 in comparison to its predecessor. The Contempt of Court Act 2013 came into force on 23 February 2013 and expressly repealed the Contempt of Court Act 1926.It is apparent from the Law Commission’s report of 2005 that the new Act was introduced with the aim of removing the ambiguities present with the 1926 Act.Importantly, the new 2013 Act appears to now provide a definition to the term “contempt of court” which includes both civil contempt and criminal contempt.Importantly, section 3 of the 2013 Act preserves the old laws as discussed in the preceding paragraphs and the new Act operates “in addition” to them when dealing with contempt cases. In the 2013 Act, several provisions discussing procedural law like High Court’s jurisdiction, procedure to be followed by Supreme Court, appeal, limitation period for appeal have been added.
However, there are certain additions to the 2013 Act which, although have been innovating compared to the 1926 Act, may be considered nowadays as controversial. These are sections 4, 5, 6, 7, 9, 10, 11 and 13(2) of the Contempt of Court Act, 2013. The reason behind this is due to the fact that these provisions appear to fall ill in the light of two Supreme Court of Bangladesh decisions.
In order to understand the current position of these provisions, it is highly relevant to first consider the Appellate Division case of Advocate RiazUddin Khan v MahmudurRahman. In this case, allegations of contempt of court was brought against the Editor-in-Charge and several staff members of the daily “Amar Desh” newspaper regarding one of their published articles which depicted that the highest Court of the country passed the “orders in reference” at the dictation of the learned Attorney General or his officers. The apex court found this to be scandalizing and questioned the integrity, impartiality and independence of the highest Court of the country. The court held that Article 108 of the Constitution empowered the Supreme Court, being a “court of record”, to impose punishment for any contempt of itself. Mr Justice SK Sinha cited the case of Supreme Court Bar Association v Unionof Indiawhere the Supreme Court of India argued that “the power to punish for contempt is inherent in a Court of Record and no act of Parliament can take away that inherent jurisdiction to punish for contempt and the Parliament’s power of legislation on the subject cannot, be exercised so as to stultify the status and dignity of the Superior Courts”. The court accordingly found the respondents guilty of contempt of court.
Although the Appellate Division decided theabove-mentioned case before the enactment of Contempt of Court Act, 2013, this case perhaps provided the justification behind the High Court Division’s decision in Advocate Asaduzzaman v Bangladesh and others in Writ Petition No. 2964/2013 which was brought to my attention through Bdlawnews.com. In this case, it was observed that sections 4, 5, 6, 7, 9, 10, 11 and 13(2) of the Contempt of Court Act, 2013 has given such protection to journalist and government official in regard to contempt of court matters that they are to be considered contrary to Article 108 of the Constitution and hence invalid. Mr. Justice Quazi Reza-UlHoque and Mr. Justice ABM AltafHossain while delivering their judgment noted that the Constitution has conferred power to the High Court to deal with contempt of court cases against anybody and that the provisions of 2013 Act which were in dispute has curtailed the Supreme Court’s constitutional power. Sections 4-7 of the 2013 provides that innocent publications or distributions, publication of impartial and authentic report, bringing allegations against the presiding judge of a subordinate court and publications of information on on-going proceedings of cases in a chamber or close-door-room with few exceptions are not contempt of court respectively. Government officials are protected from allegation of contempt of court under section 10 in respect of their failure to implement a court order. Furthermore, the court can exempt an accused of contempt of court if he/she can provide satisfactory information in reply to a show cause notice or offers unconditional apology before court.
The provisions in concern do indeed fall contrary to earlier legal practice. For instance, it was stated by Mr. Justice SK Sinha in Advocate RiazUddin Khan v MahmudurRahmanthat:
“There are numerous decision of the Apex Courts of India, Pakistan and Bangladesh that truthfulness or factual correctness is not recognised as defence in the law of contempt”.
Such comment appears to contradict with the provision of sections 4 and 5 of the 2013 Act.Sections 6 and 7 of the 2013 Act arguably appears to be contrary to the Appellate Division decision of Advocate RiazUddin Khancase itself. It was stated in Advocate RiazUddin Khan v MahmudurRahman that:
“No person has any right to flout the mandate of the law or the authority of the Court for alleged establishment of law under the cloak of freedom of thought and conscience or freedom of speech and the expression or the freedom of the press guaranteed by Article 39. Such freedom is subject to reasonable restrictions imposed by the law.”
Moreover, the guarantee to freedom of expression does not override the law of Contempt.Therefore, it is arguable that the 2013 Act have accorded considerable protection to the press and government officials from allegations of contempt of court. The High Court Division’s decision is currently stayed pending decision of the Appellate Division in Civil Miscellaneous Petition No. 987/2013.
It may be said in conclusion that although the Contempt of Court Act, 1926 failed to adequately define the law of contempt in Bangladesh, the supplementary laws under the various Bangladeshi legislations and the Constitution played an indispensable role in aiding the courts to implement the law of contempt of court effectively in this country. Although recent reforms have brought positive changes to the law, it also came with numerous problems in regard to protection of the press and government officials from contempt cases. Nevertheless, it remains to be seen how the Appellate Division will decide on this issue when the matters comes to hearing before the Apex Court of Bangladesh.In my opinion, the new Act may have overstepped its limits in protecting the freedom of speech by ignoring the impact it might have on the judicial system of Bangladesh.
Author: ASHRAF-UL-BARI NOBEL, Barrister-at-Law (Lincoln’s Inn), who is a practising lawyer at Bari & Associates
- TABLE OF CASES:
- Hurley v Commonwealth 188 Mass. 443
- ShakuntalaSahdev Ram Tiwari v Hemchand M. Singhania 1990 (3) Bom CR 82
- Sunday Times v United Kingdom 2 EHHR 245
- Attorney General v Times News Paper Ltd  AC 273
- Advocate RiazUddin Khan v MahmudurRahman63 DLR (AD) (2011)
- Supreme Court Bar Association v Union of IndiaAIR 1998 SC 1895
- Advocate Asaduzzaman v Bangladesh and others Writ Petition No. 2964/2013
- State v Brahma Prakash AIR 1950 All. 556
- TABLE OF LEGISLATIONS:
- Contempt of Court Act 2013
- Administrative Tribunal Act 1980
- The Constitution of the People’s Republic of Bangladesh
- Contempt of Court Act 1926
- Code of Civil Procedure 1908
- Code of Criminal Procedure 1898
- Penal Code 1860
- SECONDARY SOURCES:
- AzizulHaque, Contempt of Court Act (Universal Book House, 2013)
- Mohammed Akbar Ameen Babul, Law of Contempt of Courts(The Lawyers ADC, January 2011)
- G. Ramchandran, Contempt of Court (6th Edition, Eastern Book Company, 2002)
- AnjaniNandanGour, Aiyer’s Law of Contempt of Court, Parliament and Civil Servants (2nd Edition, Law Book Company, 1960)
- P. Sarathi, G.C.V. SubbaRao’s Commentary on Contempt of Court Act, 1971 (4th Edition, Alt Publications, 2005)
- David Eady and A.T.H. Smith, Arlidge, Eady& Smith on Contempt (4th Edition, 2011), Sweet & Maxwell Ltd
- Halsbury’s Laws of England, (5th Edition, 2012) Vol 22
- The Law Commission, Report on a Reference by the Government for repeal, re-enactment and modernising Contempt of Court Act, 1926 (Act XII of 1926) (June 09, 2005)
- Contempt: nature of “civil” and “criminal” contempt – whether committal for “civil contempt” barred by principle of specialty in extradition, Rev. 2014, 4, 2
Hurley v Commonwealth 188 Mass. 443
ShakuntalaSahdev Ram Tiwari v Hemchand M. Singhania 1990 (3) Bom CR 82
Contempt: nature of “civil” and “criminal” contempt – whether committal for “civil contempt” barred by principle of specialty in extradition,Arch. Rev. 2014, 4, 2
 2 EHHR 245
 AC 273
 Order 40, rule 1, Code of Civil Procedure, 1908
 S 20, Contempt of Court Act, 2013
Report on a Reference by the Government for repeal, re-enactment and modernising Contempt of Court Act, 1926 (Act XII of 1926)
 S 2(3), Contempt of Court Act, 2013
 S 12, Contempt of Court Act, 2013
 S 15, Contempt of Court Act, 2013
 S 17, Contempt of Court Act, 2013
 S 18, Contempt of Court Act, 2013
 63 DLR (AD) (2011)
 AIR 1998 SC 1895
 S 11, Contempt of Court Act, 2013
 S 13(2), Contempt of Court Act, 2013
 63 DLR (AD) (2011), p 79
 63 DLR (AD) (2011)
 63 DLR (AD) (2011), p 67
State v Brahma Prakash AIR 1950 All. 556