“We will not discuss anything pending in court,” declared former Tamil Nadu Minister D Jayakumar speaking to the media outside the Tamil Nadu Assembly on August 23, Monday. The AIADMK leader was responding on the 2017 Kodanadu murder case that has stirred a political row in Tamil Nadu again and said that since the matter is sub judice — being heard by court — he cannot speak about it. A similar response was given by the Union government on the Pegasus snooping scandal — that it cannot allow questions in Parliament during the Monsoon Session because matter is sub judice. But does the law in India really prevent authorities from answering questions or giving information about a particular matter if there is a case in court? Or is it just a convenient answer to shirk accountability?
When courts were introduced in India, they were done so on the British model. There used to be a judge and a jury who would hear the case and then the jury would deliver the verdict — this model still exists in the US. In such cases, a jury is made up of members from various walks of public life — doctors, teachers, engineers, accountants, etc — and so public discussions about a case were not allowed, as the possibility of a jury member being the vicinity and overhearing the discussion was high, and this could affect the jury member’s objectivity.
But, in India, juries were abolished in 1960. Now, a bench of judges in courts across India (the strength of the bench varies) hears the case and delivers the verdict. It is believed that members of the jury were mostly easily impressionable, however judges are less susceptible to getting influenced by outside discussions.
What is happening in India now is that when an important issue is reported, where the government’s accountability and response is called for, typically a plea will be filed in a High Court or Supreme Court, seeking the court’s intervention, and the convenient answer that follows is — the matter is sub judice. Sub-judice is a Latin expression, which means ‘under a Judge,’ that a particular matter is pending before the court and that it is being considered by the judiciary.
Swaroop Mamidipudi, an advocate from Chennai, explains that there is no law that prohibits parties in a particular case answering questions — especially from the media — about the case. Media trials and media reportage is a different issue, where media cannot deliver a parallel verdict on the case, but nothing bars discussions on an ongoing trial or plea or FIR, he says. The ability to hold discussions on legal issues also come under the fundamental rights of citizens enshrined in the Indian Constitution.
“There are some usual professional ethics that advocates who are part of the case should not talk about the case when the case is still pending. That is part of professional ethics. Advocates shouldn't do it mostly because they are a part of the court process, and whatever they have to say, they should say it in court. But this is more an ethical code than a legal code. But there is no harm in parties, including the government, talking about their case anywhere,” Swaroop says.
When the governments and public authorities deny responding to a particular issue citing it is sub judice, they end up denying citizens their right to information, he says. The government, especially, cannot say that a matter is sub judice and then refuse to talk about it.
“The government has to respond even when there are cases pending in court or not. We have a right to know as citizens. The Supreme Court says freedom of speech and expression includes the freedom to know information. So we definitely have a right to know and the government can't just hide behind ‘sub judice’ and say we won't give answers to the media,” he adds.