The articles on this subject is the review of opinions expressed
by V R Krishna Iyer, Retired Supreme Court Judge, Rajeev Dhavan, Zahid
F Ebrahim, a pakistani Lawyer and legal scholar, and Gail Omvedt in
leading journals in the past few years. This author thanks them and
also the Press for educating him on this topic through many essays
and articles.
Before we discuss the international stand on the contempt of court
law, this week let us discuss the clause "sub judice". This is needed
so that we understand the extent to which the contempt of court expands
its territory. In 1999, the Supreme Court questioned the activities
of the Narmada Bacho Andolan (NBA) activists for giving press conferences,
interviews and providing material to the Press related to the Sardar
Sarovar Case which was being tried in the Supreme Court then. The
Apex court condemned this action by saying that they constituted "knowing
comments on pending proceedings" and treated them as "disobedience
to interim injunctions" issued by the court in 1997-98 against making
comments on the merits of the pending proceedings. It is another point
that if this was the disobedience to interim injunctions, what the
nation witnessed recently with regard to the Ayodhya disputed land
case was a disobedience of even higher order. Even Nehru was proceeded
against for his remarks on a pending case. However, the point of debate
here is whether there should be interim injunctions to pending cases
as this prohibits all comments on an issue as soon as the matter becomes
sub judice.
This author wonders whether such interim injunctions would inhibit
the freedom of expression as guaranteed by our Constitution. In fact,
this author posed this question to the present Attorney General when
he gave a lecture in Bangalore a few years back. Especially in India,
the cases are pending before the court for years and years. Even a
very serious case like the Ayodhya case, which has ramifications to
the social fabric and integrity of nation, is pending before the court
for years and years. Under such situations, if there is a clamp on
public debate, comments, and discussions, it is not possible to preserve
the fundamental right to speech. In most countries, there is no such
law preventing criticisms of judges or any discussion of a case under
consideration by the Court.
The logic for such a clamp on public discussion is that the judges
can be biased or influenced and hence till the Court resolves the
matter, no public debate can happen on pending cases. It is insulting
(to judges) to believe that the learned judges who have the capability
to dissect the issues and analyze them would be carried away by the
public debates. The other opinion is that by public discussions, an
opinion could be deliberately framed in public's mind and that would
influence/pressurize the course of a pending case. All these logics
apply to roadside discussions and do not apply to cases before the
judiciary wherein the rules in the law book and the logics in a case
would decide the course and the outcome of a case.
In countries like USA with its jury system, juries are "sequestered"
while a major case is going on. In a sequestering process, juries
are kept in a closed room, with food brought to them from outside,
forbidden contact with even their families and friends. Sequestering
can extend for days if needed even months. They are completely isolated
from the rest of the world. It is not to suggest that judges must
be sequestered. Judges are intelligent enough to assess the veracity
of evidences, strength of arguments and counter-arguments that may
get published in newspapers or discussed in television channels. In
this e-mail world, how can we prevent public discussions? We need
to overhaul this law which in author's view is not only unjust and
impossible to practice but also as Gail Omvedt describes it, is ridiculous.
American Courts are very liberal in permitting media comments and
editorials even in pending cases.
The rules relating to "sub judice" fuels the competition between
the importance of free speech and people's concern on a matter of
public interest. The Press is prohibited from publishing an article
that aims at educating the public about a case on which the judgement
is reserved. Pre-judgmental articles are considered as contempt of
court. This rule also suggests that unless the petitioners give up
their freedom of speech, the court would refuse to hear their case.
Responsible discussion on public issues even if they are sub judice
should be allowed in a democratic society.
As V R Krishna Iyer argues, "a developing democracy needs more speech,
more communication even if a judicial process is pending". Enforced
silence is not a good thing to follow. A fair judicial hearing need
not be immunized from public debates, comments, and discussions. If
we continue to believe in this, we underestimate the judiciary and
it is not a good compliment to Justices. All that the regulation related
to sub judice means is that our judges are soft and feeble and that
they would be swayed in their judgements by the passing media winds.
It is an irony that a regulation that defines a contempt of court,
in itself actually tantamounts to a contempt of court.
