On August 25, as the Supreme Court was hearing the contempt case against Prashant Bhushan, Justice B.R. Gavai questioned the appropriateness of lawyers publicly commenting on cases which are sub judice. On the same day, in an unrelated development, the speaker of the Lok Sabha sent a missive to all the chairpersons of parliamentary standing committees, directing them to avoid taking up subjects which are sub judice.
The rule of sub judice restrains the publication of matters which are being considered by a court, so as to avoid any adverse impact or undue influence on an ongoing case. The courts can enforce this rule, justifying it under its contempt powers, as influencing or disrupting the proceedings of a case amounts to contempt of court and may cause miscarriage of justice.
However, the courts cannot enforce this rule against members of parliament, who enjoy immunity from any legal proceedings for statements they make inside the parliament. This privilege is given to parliamentarians, so that the legislature has the freedom to discuss any matter concerning public interest. In order to ensure that courts are not influenced by parliamentary proceedings, the rule of sub judice is enforced in parliament as a self-imposed restriction. For instance, if the law prohibits the disclosure of the identity of a survivor of sexual assault or the name of a whistleblower who has provided details of corruption involving powerful ministers, an MP can misuse his or her privilege to disclose such details in the parliament, without fearing any legal action. Therefore, the rule of sub judice is needed to act as a restraint on the exercise of parliamentary privilege.
Where the rule came from
In 1688, the Bill of Rights was enacted in England and it gave MPs the freedom to participate in the proceedings of the parliament, with immunity from any legal liability for statements made inside the House. The sub judice convention arising out of the need to prevent the misuse of this privilege in interfering with the judiciary, took shape through a series of rulings by the speaker of the House of Commons from 1889. Since the parliament of India is largely shaped on the Westminster model, it adopted this convention through its own rules of procedure and practice.
Rule 352 (i) of the Rules of Procedure and Conduct of Business in the Lok Sabha bars MPs from speaking on “any matter of fact on which a judicial decision is pending”. The speaker may also disallow motions, resolutions and questions which violate the sub judice rule. Nevertheless, since the rule is a self-imposed restriction, the speaker is empowered to allow a discussion which is sub judice if there is an overriding public interest.
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In 1968, when the question arose as to whether parliament can discuss the details of the Kutch Award, which was pending before the Delhi high court, the speaker held that the rule of sub judice should be “interpreted strictly”. While the course of justice should not be prejudiced, the chair “has also to see that the House is not debarred from discussing an urgent matter of public importance on the ground that a similar, allied or linked matter is before a court of law”. The speaker clarified that only matters raised in the House which are substantially identical with the issue before the courts for adjudication would be barred by the rule, not the entire subject related to the issue.
The conference of presiding officers in October 1967 constituted a committee headed by V.S. Page to frame guidelines on the scope of sub judice vis-à-vis legislative proceedings. The Page committee presented its report in 1968, with a set of guidelines for legislatures to follow. The guidelines make it clear that freedom of speech of legislators is a primary right, unlike the rule of sub judice, which is a self-imposed restriction. Therefore, if there is a conflict between the two, “the latter must give way to the former” (Para 30). The guidelines also state that if a subject consists of multiple issues, involving some which are pending before the courts, then those which are not specifically pending for adjudication, can be discussed by legislators. Therefore, the “entire gamut” of the subject is not excluded.
Blocking parliamentary oversight
The rules vest a great amount of discretion in the speaker to determine whether or not a matter is sub judice. However, the Office of the Speaker cannot make an evaluation without having the details of cases from the government. Therefore, if the Office of the Speaker is not proactive in obtaining the necessary information from the government to make an independent evaluation, or if there is any failure on part of the government to provide the information on the cases, the speaker may prevent an MP from speaking on the entire subject matter, if there is a related issue pending before the courts, thereby weakening parliament’s ability to hold the government accountable.
For instance, in 2005 when Lok Sabha MP P. Karunakaran tried to raise an issue regarding irregularities in the sale of a beach resort in Kerala, the MoS for tourism Renuka Chowhdury informed the then speaker, Somnath Chatterjee that the matter is sub judice due to a case filed by the Kerala government. The speaker said that the government had not given him prior information regarding the case, but took the minister’s statement at face value, without undertaking his own evaluation of the matter and disallowed the MP from raising the issue.
The rule on sub judice can be a convenient tool for the political establishment to block parliamentary oversight, especially on sensitive issues such as corruption or abuse of powers. There are some precedents which don’t inspire confidence in the separation of the application of the rule, from political calculations. For instance, in 1974 when the Pondicherry license scandal broke out involving Congress MP Tul Mohan Ram, the government assured parliament that there would be a discussion once the investigation on the matter was over. However, hours before the parliament convened for the winter session, a charge sheet was filed in the case, and this was cited to invoke the sub judice rule to prohibit discussions on the case. Veteran lawyer A.G. Noorani has argued that the charge sheet was deliberately timed in a manner to prevent parliament from questioning the government on the scandal.
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It is also important to note that in India, cases can be filed at the drop of a hat on any number of issues, especially through PILs. Therefore, the presence of a case pending before the court on an issue, can provide an excuse to the Government to argue that a topic, which may be politically embarrassing, is sub judice and therefore should not be discussed. In 1995, the government cited writ petitions before the Supreme Court, to avoid a debate on irregularities in its Telecom Policy and this reason was approved by the then speaker of the Lok Sabha.
Parliamentary standing committees play an important role in scrutinising government policy, and they should be given the autonomy to discharge this important task. While the sub judice rule extends to standing committees, the scope of the rule in India took shape in the 1960s, whereas standing committees only came into prominence from the early 1990s. Discussions in standing committees, unlike proceedings in parliament, are confidential. Therefore, the possibility of influencing ongoing cases through committee proceedings are substantially lower. If any portion of the report of the committee may adversely impact any active cases, then those portions can be removed. This substantial difference must be taken into account, while applying the sub judice rule to committee proceedings. It is crucial that the sub judice rule is not used to hamper the committee’s oversight in relation to activities of the state.
Can parliament discuss internet restrictions in Kashmir?
A day after the speaker sent his letter to the chairpersons of the parliamentary standing committees, BJP MP Nishikant Dubey wrote to Shashi Tharoor to drop the subject on 4G services in Jammu and Kashmir from the agenda of the Standing Committee on Information and Technology, which is scheduled to meet on September 1, 2020.
Ever since August 4, 2019, Kashmir has witnessed the longest internet shutdown ever in a democracy, which has severely impacted its economy and the daily lives of Kashmiri people. The shutdown was challenged before the Supreme Court of India by Anuradha Bhasin and Ghulam Nabi Azad. The court pronounced its judgment on January 10, 2020, in which it held that the suspension orders had to be proportional to the fundamental rights of the people, and that it should be the least restrictive measure resorted to by the state, to meet its legitimate goals. It also held that the orders should be made public, so that people have the opportunity to challenge them before the courts, and directed the formation of a review committee to periodically review the suspension orders.
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Subsequently, the Foundation of Media Professionals (FMP) challenged the decision of the government to only permit 2G mobile internet, arguing that the 4G connectivity is required by the people to exercise their right to health, education, work and free speech, especially while dealing with the outbreak of the COVID-19 pandemic. On May 11, 2020, the court ordered the formation of a special committee headed by the secretary of the Ministry of Home Affairs to examine the contentions of the petitioners, and dismissed the petition.
As the government did not provide any details to the public about the formation or the meetings of the special committee, a contempt petition was filed on grounds of non-compliance of the court’s judgment. In response to the petition, the government disclosed details to the court about the formation of the special committee and its decision to prohibit the use 4G services, until the security situation in Kashmir improves. In light of these details, the petitioner agreed not to pursue the contempt case, and the court on August 11, 2020 held that the contempt matter is closed, while reserving its judgment. Therefore, there is nothing additional to argue before the court on the matter.
The judgments in Anuradha Bhasin and FMP have settled the legal challenges to the suspension of internet and telecom services in Kashmir, especially since the government did not challenge these two decisions through a review or a curative petition. The contempt petition solely deals with the question as to whether the government’s actions are in contempt of the court, not whether 4G services should be restored in Kashmir. Therefore, it is erroneous to argue that the topic of 4G service in Kashmir would be barred by the rule of sub judice.
The agenda of the standing committee is fairly broad, as it deals with “suspension of Telecom Services/ Internet and its impact”. Perhaps the only question the committee may not be able to raise during its deliberations is whether the government committed the specific act of contempt of court, however, the larger subject on whether high speed internet should be restored and its impact on the lives of people of Kashmir, is not excluded by the rule of sub judice.
Security personnel place a barricade on a street during the restrictions imposed on the first anniversary of revocation of the special status of Jammu and Kashmir, in Srinagar, Wednesday, Aug 5, 2020. Photo: PTI
If a conflict on this issue arises within the committee, then the matter may be referred to the speaker to determine whether evidence relating to 4G services in Kashmir is relevant for the purposes of the committee. If such a situation arises, then the speaker should keep in mind the guidelines of the Page committee and the Kutch Award ruling to strictly interpret the sub judice rule, so as not to stifle the committee’s powers to demand answers from the government.
While the discretion of the speaker is necessary in determining whether an issue for consideration is sub judice, it is important to narrowly tailor the grounds to invoke this power. The specific stages of adjudication of a case, which cannot be raised in parliament, must clearly specified and inscribed in the rules of procedure. A separate standard for the application of the sub judice rule for parliamentary committees is desirable. It is also important that any ruling by the speaker on whether a subject matter is sub judice, must clearly contain the reasoning behind the decision.
Reasoned orders will help form some level of consistency in the precedents of the rulings by the speaker, and will reduce the scope of arbitrariness in the application of the rule. The sub judice rule should not just protect the judicial system from undue interference, it must be reformed to protect the integrity of parliamentary proceedings, to ensure that the government remains accountable to the elected representatives of the people. The rule of sub judice, should not become a rule for subordination.
Arvind Kurian Abraham is a lawyer specialising in constitutional law and a graduate of Harvard Law School.
