Tryst with the Constitution: Free speech and the sub judice principle

The advent of social media, coupled with the live-streaming of court proceedings, has considerably changed the relationship between courts and the public. Proceedings that were once accessible largely to those physically present in courtrooms, or through news reports, can now be watched, discussed and scrutinised by a much wider audience.

Although courts have repeatedly recognised that observations and criticism of the judiciary falls within the right to free speech, the exercise of this right is often restricted through the sub judice principle and the law of contempt. Understanding the scope and limits of these restrictions is, therefore, particularly important.

The sub judice principle effectively means that an issue or case pending consideration before a court ought not to be discussed. It finds application in both parliamentary and judicial proceedings, although its scope and operation differ.

In parliamentary proceedings, members are restricted from asking questions or referring to matters pending before a court. The rationale is that parliamentary discussions should not prejudice judicial proceedings or influence their outcome. However, the restriction is not absolute and the presiding chair has the discretion to permit a discussion, provided it is unlikely to prejudice the proceedings. Nevertheless, members have often alleged that the principle has been invoked to avoid parliamentary scrutiny, particularly in matters involving the government.

For instance, in 1974, Congress MP from Bihar Tul Mohan Ram was implicated in allegations of corruption over the issuance of import licences by the government. The opposition at the time alleged that the government had ensured the filing of a chargesheet shortly before parliament’s winter session, to make the matter sub judice and prevent its discussion. Similarly, in December 1995, IK Gujral complained in the Rajya Sabha that the House had been denied an opportunity to discuss the nexus between criminals and politicians merely because someone had approached a court on the matter. Even today, governments frequently cite pending judicial proceedings as a reason to decline answers to issues of public importance.

An absolute application of the principle is concerning, given how easily judicial proceedings can be initiated in India and subsequently remain pending, effectively giving the government a free pass from scrutiny.

However, the sub judice principle does not apply in the same manner to public discussions. The general rule is that pending matters remain open to discussion, provided such commentary does not amount to contempt of court or violate a specific judicial order. Courts may, in limited circumstances, restrict publication where it poses a real and substantial risk of prejudicing the proceedings. In Sahara India Real Estate Corporation Ltd v. SEBI (2012), the Supreme Court recognised the power to issue temporary postponement orders in such cases, subject to the requirements of necessity and proportionality. However, these restrictions are exceptions and not the norm.

This distinction was recently reiterated by the Supreme Court in Wikimedia Foundation v. ANI Media. The Court was hearing an appeal against an order directing the removal of content concerning a pending defamation dispute on the ground that it violated the sub judice principle and bordered on contempt. It set aside the direction and observed that the courts must remain open to public observations, debates and criticism, even where the issue is sub judice.

The position is clearer with respect to contempt of court. Articles 129 and 215 of the Constitution empower the Supreme Court and the High Courts, respectively, to punish for contempt. The Contempt of Courts Act, 1971 provides for both civil and criminal contempt, with the latter including publications that scandalise or lower the authority of courts, prejudice judicial proceedings, or otherwise interfere with the administration of justice. However, not every criticism amounts to contempt. Fair and accurate reporting of judicial proceedings and fair comments on the merits of cases that have been finally decided are protected. Importantly, the Act requires that contempt must substantially interfere, or tend substantially to interfere, with the administration of justice before punishment can be imposed.

The Court's approach to contempt can be understood through the six principles articulated by Justice Krishna Iyer in In re S Mulgaokar (1978), which have often been relied upon in subsequent judgments. First, contempt powers should be exercised sparingly and only in cases involving serious acts that obstruct or “destroy the judicial process”. Second, freedom to criticise must be balanced against the need to protect the administration of justice. Third, an attack on a judge’s personal reputation must be distinguished from interference with public justice, with only the latter constituting contempt. Fourth, the media must be given “free play within responsible limits”, even where they are critical of courts, including the Supreme Court. Fifth, judges must not be hypersensitive to criticism, even when it is excessive or unfair. Sixth, if, after evaluating the factors above, the court considers an attack on judges to be “scurrilous, offensive, intimidatory, or malicious beyond condonable limits”, it may warrant the exercise of contempt powers.

In practice, the application of these principles is subjective and may depend upon the temperament of individual judges. This is often evident from the courts arriving at different conclusions in cases involving similar forms of criticism. For instance, in EMS Namboodiripad v. T Narayanan Nambiar (1970), the Supreme Court upheld the conviction of the then Chief Minister of Kerala for describing the judiciary as “dominated by class hatred, class prejudices” and one that “essentially served the exploiting classes”. However, in PN Duda v. P Shiv Shankar (1988), the Court reached the opposite conclusion over the remarks of a Union law minister, who had similarly criticised the judiciary and remarked that “the Supreme Court composed of the element from the elite class had their unconcealed sympathy for the haves i.e. the Zamindars.”

Although the remarks in both cases concerned the judiciary’s class orientation, the Court adopted different approaches to how they were treated under contempt law.

In the early contempt case of In re PC Sen (1968), the Supreme Court observed that comments by parties to pending proceedings, or by lawyers engaged in them, may be more serious than similar remarks made by independent commentators. This assumes particular relevance today, as lawyers often discuss their pending cases in the media.

Petitions are often circulated on social media even before they are listed, followed by videos and interviews in which lawyers explain the merits of their cases. Some subsequently participate in television discussions debating the very questions they have argued, or are due to argue, before courts.

Prima facie, such conduct raises questions of professional propriety. Rule 36 of the Bar Council of India Rules prohibits advocates from soliciting work or advertising, directly or indirectly, including through interviews and newspaper comments connected with cases in which they are engaged. Media appearances may, therefore, violate the rule, even where they do not constitute contempt. In my view, the restriction on advertising itself deserves reconsideration, particularly as lawyers have limited means of making their professional services known. However, my larger concern lies elsewhere.

Lawyers appearing in ongoing cases are interested participants. However, when they participate in discussions, their views are often presented alongside those of independent commentators, without sufficient disclosure of their professional involvement or questions over their objectivity. Further, such appearances may become a means of playing to the gallery of public opinion, generating support for a particular outcome, which may influence adjudication. None of this suggests that lawyers should be prohibited from explaining legal questions or that pending issues should be shielded from public discussion. The distinction is between scrutiny that promotes judicial accountability and publicity that may influence the outcome of proceedings.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.