One clause of the Contempt of Court Act, 2012 pertains to providing immunity to the prime minister and several public office holders from prosecution on the contempt charge. The exemption is specified in Section 3(i) of the new legislation, which says exercise of powers and performance of functions by a public office holder of his respective office under Article 248(1) of the Constitution for any act done or purported to be done in exercise of those powers and performance of functions shall not amount to commission of contempt of court.

Article 248(1) accords protection to the President, provincial governors, the prime minister, federal ministers, ministers of state, chief ministers and provincial ministers and says they shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a province.

Former President of the Balochistan Bar Association Baz Muhammad Kakar, who is one of the petitioners against the contempt law, has contended that Section 3(i) curtails the power and jurisdiction of the Supreme Court under Article 204(2) to punish ‘any person’ who abused, interfered with or obstructed the process of the court in any way or disobeyed any of its order. It also violates Article 25 which guarantees equal protection of the laws.

Article 204(2) says the Supreme Court or a high court shall have power to punish any person who abuses, interferes with or obstructs its process in any way or disobeys its order; scandalizes it or otherwise does anything which tends to bring it or its judge into hatred, ridicule or contempt; does anything which tends to prejudice the determination of a matter pending before it; or does any other thing which, by law, constitutes contempt of the court.

Another clause of the new legislation that raised eyebrows during arguments before the bench relates to the automatic suspension of the court order on filing of appeal before a larger panel of judges. Lawyers say the instant suspension of the sentence passed by court would render the contempt law ineffective and daredevils would be encouraged to flout the law more brazenly.

Yet another section pertains to the elimination of the role of the chief justice when he himself takes cognizance of the offence of contempt having been committed by someone. In such a case, the normal functions that the chief justice performs under the law being the head of the apex court will go to the two next most senior judges.

Not only the chief justice, but any judge or panel of justices that will first take cognizance of contempt offence will not be part of the bench, which will subsequently hold hearing on it. Abolition of the role of the chief justice and judges, taking cognizance of contempt offence, clearly affect the independence of judiciary. Barring exceptions, the chief justice first takes cognizance of contempt offence.

Sub-clause 5 of Section 8 of the draft bill says when in case the first cognizance of the offence of contempt has been taken by the chief justice, his functions shall be performed by a bench of justices composed of the two next most senior judges available.

If at any stage of the contempt hearing in which the bench, replacing the chief justice, has passed an order, it is of the opinion that, in the interests of justice, the case shall be transferred to another judge or bench, it may pass an order; and the case shall then be heard accordingly. Clause 2 of Section 8 says that on receipt of the papers relating to contempt from the judge first taking cognizance, the chief justice shall pass to another judge or a bench set up by him of which the judge first taking cognizance is not a member.