Most of the people and media persons nowadays think that judges enjoy immunity from criticism. They wrongly believe that it would be a contempt of court if they express any adverse opinion regarding the decisions issued by judges. But in my view, this whole theory of immunity of judges is wrongly founded.
First of all, contempt of court has nothing do with the criticisim on the decisions passed by judges or about their public conduct. Contempt of court in reality means to interfere in the administration of justice.
For example, it would be a contempt of court if a public servant defies the orders issued by court, or where court summons a public servant or a witness and he intentionally does not appear.
On the other hand, if I say that a particular decision or order passed by a judge is wrongly passed or that there may be an element of corruption in it, it would not be a contempt of court. It would also not be a contempt of court if I say that only a corrupt or biased judge can pass such an order.
But someone would say that even if it is not a contempt of court, it could be termed as defamation. Then my answer would be referring to the Pakistan Penal Code. Section 499 of PPC is about defamation and exception 2 provided in this section says that “It is not defamation to express in good faith any opinion whatever respecting the conduct of the public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct.”
Furthermore, according to section 21 of PPC a judge is a public servant so it is not defamation to express any opinion regarding his public conduct.
There is case law on this subject also. In 16 Bom LR 542, the learned judge said that “the public acts of a judge may be adversely commented on. Freedom would be seriously impaired if the judicial tribunals were outside the range of such comment.” Similar views regarding criticism of public officials were also expressed by an Australian court in Langer vs Australian Broadcasting Corporation.
Thus, the conclusion of the whole discussion is that freedom of speech and expression, which is a fundamental right of every citizen, demands that judges should have no immunity from criticism and adverse comments regarding their decisions and that it is also necessary for fair and equitable administration of justice.
USMAN IJAZ MALIK
Lahore
