Sub judice is a convenient, self-serving alibi

In India, jury trials were abolished in 1960, but its vestige, sub judice, is still lingering

Leave alone common folks, even legal-eagles take shelter behind the legal principle of sub judice when asked to offer their comments on an ongoing court trial or scam that has freshly broken out. The Concise Oxford Dictionary defines sub judice as a matter under judicial consideration and therefore prohibited from public discussion elsewhere. Does this prohibition hold sway in India? The answer is in the negative.

Sub judice is a salutary law in countries where jury trials take place. In India jury trials were abolished in 1960 but its vestige, sub judice, seems to be lingering on if as a self-serving alibi. The prohibition against public discussion when a matter is pending before a jury is commonsensical - its members must not be swept off their feet or confused by the cacophony of views on the issues involved in the trial given the fact that jury members are not well-versed in legal principles, drawn as they are from the cross-section of the society often as randomly as from telephone directories. It takes a judicial mind to be stern and impervious to media and other discussions impinging on the fate of the accused. Members of jury, on the contrary, are impressionable and thus vulnerable to being influenced by discussions outside the courtroom, be it newspapers, television channels or elsewhere.

In India, the Civil Procedure Code (CPC) vide section 10 prohibits through its maxim res sub judice forum shopping. In other words, if a matter is pending before a court or forum of competent jurisdiction, the same matter cannot be taken before another court or forum till it is pending. Likewise, section 11 of the CPC through its maxim res judicata prohibits the matter which has been judicially resolved from being agitated again. There are two relaxations to the rigour of this second rule - statutory and Constitutional appeals as well as taxation matters where the courts have said the rule of res judicata does not apply because a matter of one particular year can be agitated the next or subsequent years. The thaw in favour of tax matters is the dawning realisation that the facts of two years may vary in details. Be that as it may.

In the event, the Indian law on sub judice does not gag the media much less the chatterati. To be sure, there has been some disquiet over extensive media trials of economic scandals involving politicians and industrialists as well as of crimes committed by individuals. Viewers revel in the salacious details. Television channels get higher television rating points (TRPs).

Barring one or two cases where the courts had interjected to prohibit media discussions, by and large the Indian judiciary has been generous in permitting free discussions and airing of views on matters pending before it. This is as it should be. The Indian judiciary has won universal acclaim. It stands out as an island of incorruptibility by and large amid all-round decay and degeneration. To be sure, the process may be grindingly slow and painful but the reasons, therefore, are outside the scope of this article. To be sure again, the trial court verdicts have been upturned many a time in the past by higher courts on appeal but that does not even remotely cast aspersions on the fairness of trial.

The trial courts have by and large maintained their independence and dignity by not allowing themselves to be influenced one way or the other by the animated debates and synthetic anger of the anchors.If anything healthy debate outside the court has the effect of the judges getting an eclectic mix of views on the issue, enabling them to make a more informed judgment while retaining independence.

The short point is juries may be vulnerable to influence, not the judges.

While on the issue, it may also be useful to examine whether discussions elsewhere when the matter is pending before courts amount to contempt of court. It would be contempt of court if the media and others continue their discussions despite the court having prohibited them in the interest of fair trial.

Thus free public discussion of an ongoing trial is neither contempt of court nor hobbled by the sub judice principle. That politicians and others refuse to take questions on such matters is a convenient, self-serving alibi, nothing more.

The author is a chartered accountant