Sub judice

The term “sub judice” is the Latin for ‘under a judge’. It means that if a legal case is sub judice, it is still being discussed in court.

The doctrine of res sub judice relates to a matter pending judicial inquiry or trial. It bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previously instituted suit.

Official Definition

Legal provisions related to sub judice:

Civil Procedure Code 1908:

Section 10 of the Civil Procedure Code prevents a court from proceeding with the trial of a lawsuit if the same matter is already being litigated and is pending between the same parties in another suit, either in India or in a court established by the Central Government or the Supreme Court. However, this does not apply if the suit is based on the same cause of action but is pending in a foreign court.

The National Human Rights Commission (Procedure) Regulations, 1994

Section 9 of the The National Human Rights Commission (Procedure) Regulations which lays down the types of complaints which are not ordinarily entertainable includes clause (xi) which reads “matter is sub judice before a court/Tribunal”. So, complaints which are pending in a court/tribunal cannot be brought before the NHRC.

The Central Vigilance Commission (Procedure for Dealing with Complaints and Procedure of Inquiry) Regulations, 2021

Similar to the NHRC (Procedure) Regulations, under the CVC (Procedure for Dealing with Complaints and Procedure of Inquiry) Regulations, 2021, the complaints which “contain matters which are sub-judice before any competent Court or Tribunal or Authority” are also not eligible to be entertained by the Commission under Section 3(7)(vi).

Rules of Procedure and Conduct of Business in Lok Sabha:

Section 352(i) of the Rules lays down:

352. A member while speaking shall not—

(i) refer to any matter of fact on which a judicial decision is pending;

Hence, a member of parliament is prohibited from discussing any matter which is sub judice. So, the doctrine of sub judice acts as a restriction on the MPs. However, this is only a self-imposed restriction. The members of Parliament enjoy immunity from any legal proceedings for the statements that they make in Parliament. So, through this privilege the member can discuss any sub judice matter if it overrides public interest.

Provisions regarding contempt

Under Articles 129 and 215 of the Constitution of India, the Supreme Court and High Courts can restrict media coverage of court proceedings through the authority to punish for contempt.

Under Section 3 of The Contempt of Courts Act,1971, individuals cannot be held in contempt of court for publishing or distributing material that interferes with justice in ongoing legal proceedings if “at that time he had no reasonable grounds for believing that the proceeding was pending.” Similarly, distributing material containing such content is not contemptuous if the distributor was unaware of its nature. This protects individuals from inadvertent contempt charges due to lack of awareness. Under Section 4 of the Act, no person would be liable for contempt if he published “a fair and accurate report of a judicial proceeding or any stage thereof.”

Definition of ‘sub judice’ in case laws:

Escorts Const. Equipment Ltd. and Ors. Vs. Action Const. Equipment P. Ltd. and Ors., 1998

In this case, the court had laid down three conditions for the application of section 10 of CPC. In other words, a case is said to be subjudice and hence the suit can be stayed when

“(i) the matter in issue both suits must be substantially the same;

(ii) the previously instituted suit must be pending in the same Court in which the subsequent suit is brought or in a different court in India having jurisdiction to grant the relief claimed; and

(iii) both the suits must be between the same parties or their representatives.”

Pandurang Ramchandra Mandlik v Smt. Shantabai Ramchandra Ghatge, 1989

For the purpose of application of the doctrine of sub judice, it is essential to understand the meaning of “suit”. In the Pandurang case, court clarified that “A 'suit' is a proceeding which is commenced by a plaint.” Moroever, under Section 26(1) of Civil Procedure Code, it is provided that

“26. Institution of suits. — 1 [(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.”

So, only if a proceeding instituted through a plaint, called a suit, is pending under a judge, the question of application of doctrine of res sub judice will arise.

Sahara India Real Estate Corp.Ltd.& Ors vs Securities & Exch. Board Of India & Anr, 2012

In Sahara India v Sebi, the court referred to many cases, especially the Mirajkar case, which showed that even though the courts supported the principle of open justice (through which the freedom of press guarantees the administration of justice), they held that there may be circumstances where the court in its discretion may put temporary restrictions on media to ensure fair and impartial legal proceedings.

Articles 129 and 215 of the Constitution give the Supreme Court and High Courts the inherent authority to restrict media coverage of court proceedings. The integrity of the legal system is maintained by contempt of court laws. Media coverage may be temporarily suspended in order to guarantee fair trials and strike a balance between public justice and individual rights. Under Section 4 and 7 of the Contempt of Courts Act, the inaccuracy of reporting becomes contempt only when it substantially interferes with the administration of justice.

Postponement orders prevent media contempt, maintaining trial fairness and balancing rights under Articles 19(1)(a) and 21. They're justified as reasonable restrictions, safeguarding justice administration while respecting freedom of expression. Such orders must be appropriate and required, assessed case-by-case, to uphold justice and the rights of individuals.

International Variations

United Kingdom:

In the UK, civil cases are considered sub judice once a trial or hearing date is set, while criminal cases are pending from the moment a significant step in the prosecution, such as a police arrest, is initiated. The sub judice status continues until a final judgment is delivered. This principle, rooted in common law, is enforced through the criminal offense of contempt of court. In other European countries, including Belgium, protection for sub judice is typically provided through civil actions for damages rather than through criminal contempt laws. The primary concern behind the sub judice principle, especially in the UK, is the potential for "trial by media." Liability for statutory contempt of court is strict, meaning the publisher cannot avoid responsibility by claiming lack of intent to prejudice ongoing legal proceedings. Intent is essential for common law contempt, requiring the material to be published with the aim of prejudicing pending or imminent criminal proceedings. Courts must weigh Article 10 of the European Convention on Human Rights and consider proportionality regarding any legitimate purpose the publication may serve.

United States:

In the United States, the principle of sub judice isn't as strictly enforced as in the UK, but guidelines and ethical considerations guide discussions on ongoing legal matters, especially by media and public figures. The Sixth Amendment guarantees the right to a fair trial, leading judges to issue gag orders to prevent prejudicing juries. However, the First Amendment protects freedom of speech and the press, creating a balance between ensuring fair trials and upholding these freedoms. Practices may vary, and legal professionals often exercise caution in discussing ongoing cases to avoid potential interference. Judges can issue gag orders to limit public discussion by parties involved in a case to prevent jury prejudice.

Canada

In Canada, the principle of sub judice restricts public discussion of ongoing legal cases to prevent prejudice to fair trials. Section 649 of the Criminal Code outlines restrictions on reporting and discussing ongoing legal proceedings to ensure fair trials. Violations can result in contempt of court charges. However, media can report on factual details and legal arguments without interference. Additionally, courts may issue publication bans or gag orders to prevent prejudicial information from influencing proceedings.

France:

In France, a principle akin to sub judice is termed as "interdiction de commenter l'instruction en cours," or the prohibition of commenting on ongoing investigations. This principle is delineated in the French Code of Criminal Procedure, specifically in Article 11. It mandates a restriction on public discourse concerning an ongoing judicial inquiry to prevent biasing the investigation or swaying public sentiment. Breaching this principle may result in legal repercussions, such as fines or imprisonment. Moreover, the French legal framework upholds the presumption of innocence until proven guilty, underscoring the significance of safeguarding the integrity of ongoing investigations and trials.

Research that engages with sub judice

A Comment on "No Comment": The Sub Judice Rule and the Accountability of Public Officials in the 21st Century by Lorne Sossin

In Canada, the sub judice rule covers applications for parliamentary convention, stay of proceedings, and contempt of court, which leaves room for interpretation when it comes to statements made by public officials. There is a lack of clarity even though courts strive for parliamentary convention and legal contempt to be in line. Critics draw attention to its expansive interpretation and the scant judicial guidance regarding its interplay with the right to free speech. Efforts to codify the sub judice rule have been spurred by the lack of clarity in its common law application. Although parts of the rule were codified in the UK's Contempt of Court Act (1981), there is still some uncertainty. In the Criminal Law Reform Act (1984), Canada proposed full codification with the goal of precisely defining the rule's scope. The bill's failure, though, emphasizes the difficulties in striking a balance between trial fairness and freedom of speech.

Two scenarios—the Mad Cow class action lawsuit and the Northern Gateway pipeline controversy—are used to analyze the applicability of the subjudice rule. Concerns regarding impartiality were raised in the former case due to possible influence of remarks made by Canadian government officials on a regulatory process. On the other hand, the sub judice rule prevented the Canadian Food Inspection Agency (CFIA) from commenting in the Mad Cow case, which made it difficult to hold them accountable. These instances highlight the rule's two risks: compromising the integrity of adjudications while evading responsibility.These case studies underscore the need for a reevaluation of the sub judice rule's application in modern contexts to balance competing interests effectively.

In advocating for a balanced approach to the sub judice rule, public officials should avoid comments that risk prejudicing proceedings while ensuring transparency. Journalists must also uphold ethical standards, respecting fair trial rights and avoiding prejudicial reporting. Emphasizing the principle of prejudice over a rigid temporal application of the rule, combined with oversight mechanisms, enhances accountability and safeguards the integrity of adjudication. Integrating sub judice principles into journalistic ethics and extending oversight to public officials would promote fairness and transparency in legal proceedings.

The Riddle of Sub-judice by Galia Schneebaum & Shai J. Lavi

Contempt by publication, including sub-judice and scandalizing the court, faced scrutiny in the 20th century due to freedom of speech concerns. While scandalizing the court tended toward abolition, sub-judice underwent reform.The subjudice jurisprudence of today is nuanced and reveals a lack of clarity in its application. Prejudice is interpreted in two ways under the doctrine: first, it refers to tampering with legal proceedings; second, it refers to public preconception, especially in civil cases.

With the rise of sub-judice and court scandals in the eighteenth century, contempt of court became less a reflection of political authority and more of a concern for interference from the public domain. Sub judice sought to counter the press's power over public opinion, as demonstrated most famously in Lord Hardwicke's St. James's Evening Post case. It highlights a complex conflict between the press and the court, exposing different opinions about public discourse and power. Jürgen Habermas highlighted the role of the eighteenth-century English press in shaping the modern public sphere. However, recent scholarship challenges his depiction of the press as a democratic force and public opinion as a space of open deliberation. Instead, the press wielded influence through uniformity rather than diversity of opinion, leading to concerns about its power to shape public opinion.

In the nineteenth century and beyond, sub-judice was predominantly justified by obstruction of justice, particularly in prejudicing the jury. However, instances like Ilkley Local Board v. Oswald Lister highlighted effects on parties rather than the court's authority, akin to obstruction of justice. Notably, the Sunday Times case in the twentieth century saw a resurgence of the "prejudicing the public" rationale. The House of Lords emphasized concerns about trial by media, diverging from the fair trial interpretation. Yet, this rationale faced scrutiny, leading to its rejection by the European Court of Human Rights and subsequent legislative changes, reaffirming obstruction of justice as the primary justification for sub-judice.

The study of sub-judice unveils competing rationales: prejudicing the court versus prejudicing the public, reflecting two distinct views of authority. Sub-judice, protecting the court's public authority, prevents premature public judgment and preserves the legitimacy of the trial. Contrary to Habermas, the media's rise is seen as a threat to the court's authority, distorting public speech. This forgotten perspective, championed by Hardwicke, emphasizes the court's role in preserving meaningful public deliberation.