Sub judice

IN Press Laws Guide | 17/09/2012
1.      When is a case sub-judice?
Answer: A case is sub-judice from the time, (a) in criminal cases: a charge-sheet or challan has been filed by the Police in Court or if summons or warrant is not issued by Court; and (b) in civil cases: a notice is issued by a Court on the first date of hearing, till the case is finally disposed off. This includes within its ambit the process of appeals until the decision of the lower court achieves finality due to an exhaustion of appeals or the impacted parties not filing any appeals within the time period permissible.  
Reasoning: From the perspective of the Contempt of Courts Act, 1971 contempt can only be initiated against publications only in cases when the, judicial proceeding is “pending”. Hence, full immunity is granted to publications even if they prejudicially interfere with the course of justice in a criminal case, if by the date of publication, a chargesheet or challan is not filed or if summons or warrant is not issued. Even after the chargsheet/challan is filed or the summons or warrant is issued the Court conducting the trial does not have any inherent powers under the Code of Criminal Procedure, 1973 to prohibit publication which in its view is interfering with the administration of justice. For this a separate proceeding under the Contempt of Courts Act, 1971 has to be initiated. However, this does not take into account the law of defamation for which an independent legal case or a criminal complaint can be filed against the publication.
Effect: The provisions of the Contempt of Courts Act, 1971 are most directly applicable to defining as to what constitutes sub-judice. The explanation to Sec. 3 of the Act states that a matter would be considered ‘pending’ (or sub-judice):
(a)    in a civil proceeding – when it is instituted by the filing of a plaint or otherwise
(b)   in a criminal proceeding – regarding an offence, when the charge-sheet/challan is filed or when the court issues summons/warrant or, in any other matter, when the court takes cognizance of the matter.
A matter ceases to be pending when it is finally decided, i.e., there is no possibility of further appeal.
2.      Can I report on issues that are sub-judice?
Answer: Yes, reporters and publishers can cover cases which are sub-judice provided there is no express bar placed on them by a Court which is seized of the matter. Usually certain proceedings such as those in family courts and involving accusations of rape are held in-camera and their publication is not permitted.
Reasoning: The Contempt of Courts Act, 1971 states under Sec. 4 that, “Subject to the provisions contained in section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.” Section 7, contains provisions relating to in-camera proceedings and states a publication on it is not generally prohibited and will not constitute contempt until, (a) when the publication is contrary to the provisions of a law; (b) when the Court on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication; (c) where the in-camera hearing is connected with public order or the security of the State; (d) here the information relates to a secret process, discovery or invention which is an issue in the proceedings.
Further with respect to cases which have been disposed off, Sec. 5 states that, “A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.” It must be mentioned that the Supreme Court has recently reserved a judgement on the issue and will be framing guidelines on media reporting of sub-judice matters.
Effect: Reporters, until expressly barred from reporting on issues which are sub-judice are permitted to report on it. This has to be within the confines of the Contempt of Courts Act, 1971 and not prejudice or interferes with the due course of any judicial proceeding.
3.      Can I interview possible witnesses and quote documents that are before the court while an issue is sub-judice?
Answer: Yes, at present there is no clear legal bar to journalists interviewing possible witnesses and quoting documents in a case which is sub-judice, however as per the Law Commission such acts may amount to interfering in the administration of justice and may amount to Contempt of Court.
Reasoning: Interviewing possible witnesses and quoting documents will fall within the various types of conduct which are listed by the Law Commission in its 200th Report which can be categorised as interfering and prejudicing the administration of justice. In M.P. Lohia vs. State of West Bengal (AIR 2005 SC 790), the Supreme Court expressed its disapproval with a one-sided article in a newspaper in which the allegations made by the parents of the wife in an alleged dowry death case were published but the record filed by the accused that his wife` was schizophrenic were not published. It was stated the publication of the article created a pressurised atmosphere before the Judge who was originally hearing the bail petition of the Husband and his family.
Effect: Reporters, at present may interview possible witnesses and quote documents when the case is sub-judice however even in the absence of a clear bar, they risk being tried for contempt of court for prejudicing or interfering with the administration of justice.
1.   What is a case diary? What is the rationale behind keeping the accused unaware of the contents of a case-diary?
Answer: A case dairy is day to day record of the investigations conducted in a case. The police have to enter the progress made in the investigation on a daily basis in the case diary. The accused has no access to the case diary so that he cannot obstruct the investigation of the police in any manner.
Reasoning: Under Section 172 of the Criminal Procedure Code, 1973, every police officer shall enter his daily proceedings in the investigation in the diary. Information such as the time he began and closed the investigation or the places he visited for investigation has to be entered in the diary. The statements of the witnesses also have to be entered in the diary. The contents of the case diary cannot be disclosed to the accused. According to Section 172(3), the accused is not entitled to call for the case diary. The reason behind keeping the accused unaware of the contents of a case diary is so that there is no impediment in the process of investigation. As the Police are in the process of investigating the case, the accused should not know how and what progress the Police has made. Hence, a copy of the case diary is not provided to the accused under Section 172(3) of the Criminal Procedure Code, 1973.
Effect: Under Section 172(3) of Criminal Procedure Code, 1973 the accused cannot avail the case diaries. However, now under the Right to Information Act, 2005 the accused can obtain copies of the case diary. The Delhi High Court has asked the Delhi Police to provide the case diaries to the accused under the Right to Information Act, 2005. However, this was after the investigative stage and once the trial was already complete. The Court held that no prejudice can be caused to the police by providing the case diary to the accused. It appears unlikely that a case diary will be provided even under the RTI Act during the course of investigation itself. However, the Court can order production of the case diary in certain instances, for example to check on the state of investigation or if mala fides are alleged.   
2.      How am I expected to know what is quoted in a case-diary and, therefore, must not be made public (to prevent the accused from gaining access to it)?
Answer: The contents of a case diary have been discussed in question no.1.A case diary is not made public. Therefore, any third party cannot have access to the case diary. A journalist has to take caution while publishing information so as to not divulge the information given in the case diary. In case the journalist publishes information which overlaps or coincides with the information in the case diary then he can be held liable for contempt of court under the Contempt of Court Act, 1971.
Reasoning: The reason behind not making the case diary public is to give the accused a fair trial. If the case diary is released then it can lead to formation of an opinion by the public on the culpability of the accused. Thus, if a journalist publishes some information which is quoted in the case diary then he can be held liable for contempt of court.
Effect: When any journalist publishes any information that is there is in the case diary then it might give an added advantage to the accused as he will know the progress of the investigation. Thus, the case diary is not made public so that the accused does not impinge the investigation. Moreover, it is to prevent trial by the media and the public at large.
3.    If I have information that could potentially alter the direction that a trial is taking, but this has not been made public, what do I do with it? Can I publish a story using it?
Answer: If a person possesses some information which could alter the direction of a trial then such information has to be given to the police or the concerned authority. The information is confidential and cannot be made public. No story can be published using such information as it could materially affect the trial of the person.
4.    What are the restrictions in place already for reports on sub-judice matters?
Answer: The restrictions in place for reporting on sub judice matters are given under the Contempt of Court Act, 1971. Reporting on a sub judice matter can lead to criminal contempt under Section 2(c) of the Act.
Reasoning: Section 2(c) of the Contempt of Court Act, 1971 provides that any publication which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court or interferes or tends to interfere with the due course of any judicial proceeding or obstructs or tends to obstruct, the administration of justice in any other manner constitutes criminal contempt. Such restrictions are only placed on matters which are pending before the court. This is because during the pendency of the trial such publications can influence the public as well as the judicial system Publications on matters which are finally decided and heard by the court do not lead to contempt as they cannot cause prejudice of any kind.
Effect: The journalist report on sub judice matter then it would amount to contempt of court. The restriction has been placed to prevent trial by the media and the public. Any opinion formed by the public may affect the decision of a sub judice case.
5.      Can I be sued for defamation by one party to a matter if I report on the arguments made by the other party while the case is sub-judice?
Answer: No, the journalist cannot be sued for defamation by one party if he reports on the arguments made by the other party while the case is sub-judice. Truth is a defence in a suit of defamation.
Reasoning: If a journalist publishes the arguments of one party while the case is pending he can be held liable for Contempt of Court under the Contempt of Court Act, 1971. However, he cannot be sued for defamation under the law of torts or under the Indian Penal Code. Truth is a defence under defamation thus if the arguments reported are true then no action arises.
Effect: If a journalist clearly mentions that the allegations are merely the arguments that have been taken by the party and the Court is still deciding upon the validity of the arguments then no action for defamation arises. There should not be any concluding remarks made by the journalist on the merits of the case.
6.      Can I publish a report of court proceeding in a sub judice case along with the critic in the same article?
Answer: Refer to answers 4 and 5.
Sub judice
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