•ABSTRACT
Sub-judice literally means ‘in course of trial’ and is also referred to in media terms as being ‘under a judge’. Journalists know or should know that from this time on comment about matters before the courts is fraught with danger. The term sub-judice can be defined as “under judicial consideration”. A matter that is pending in court, meaning that any dispute/conflict that is still need to be considered judicially wherein a judgement has not been pronounced can be said to be a matter in sub- judice. It is a rule that forms a part of the law relating to contempt of court. This rule is basically to govern what public statements can be made about ongoing legal proceedings before, principally, the courts. It is the role of the courts to deal with legal issues that are before it, therefore, its role should not be hindered by others making public statements about how these issues should be dealt with. Through an analysis of case studies and theoretical frameworks, the author seeks to disentangle the underlying mechanisms driving sub juice, alleviating light on its destructive effects on the fairness and integrity of legal processes.
KEYWORD- Sub-judice, Contempt of Court, Ongoing Legal Proceedings, Media Trails, Public Statement.
INTRODUCTION:
The main work of the courts is to base its decisions on facts and findings and by making such public statements, the media influences the people, so much so that, the role of evidence is negated. This rule is applicable wherever any court proceedings are ongoing, through all stages of appeal until the matter is completed. The limitation of this rule cannot be restricted to its parties and lawyers but it is applicable to the public and any of the statements made any public officials.
The object of sub-judice law is to prohibit the publication of material that might prejudice civil or criminal proceedings while those proceedings are pending. The sub-judice rule maybe breached by public statements when the public statements issues risk the prejudging matters or issues that are before the courts. It is the concept of prejudging that is the core principle of the rule. A breach of sub-judice can include, say, for example, statements urging the court to reach a particular result in a matter, comments on the strengths or weaknesses of a party’s case or any particular issue commenting on witnesses or evidence in a case. This sub-judice rule operates more as a protective rule rather than being prohibitive in a way that it does not prohibit fair and accurate reporting of factual content and as long as any reporting done by the media does not affect or obstruct the final decision of the case by prejudging the case or its legal issues.
Whether any particular statement raises sub-judice concerns depends on the nature of the statement, the case involved and other circumstances. Members of the media should therefore be careful and empathetic towards the sensitivity and parties to the case and must consult the party’s legal counsel for advice on what may and may not be said about ongoing legal proceedings.
To constitute sub-judice contempt of court must be established:
That publication took place while proceedings were sub-judice, and
Either that-
There was an intention to interfere with the administration of justice in the proceeding Or
The publication of the material had that tendency.
The majority of sub-judice contempt cases involving the media concerns the publication of material which has a tendency to interfere with the administration of justice. The tendency must be clear, or real and definite and there must be a substantial risk of serious interference. Establishing the tendency of the material by reference to the circumstances of each case helps to ensure that the law of contempt does not encroach on freedom of speech without justification.
The New South Wales Reform Commission’s (NSWLRC) Report on Contempt recommended a reformulation of the test of liability in terms of a ‘substantial risk of prejudice, rather than a tendency to prejudice proceedings.1 The principal aim of sub-judice contempt is to prevent publications that may damage a fair trial before any actual damage is done. It is therefore necessary to frame liability in terms of the likelihood of prejudice, rather than punish after prejudice has occurred, in order to deter the media from publishing prejudicial material, and encourage them to exercise proper care. It should not be thought contempt law is unique in its application to prevent an infraction of the law before it occurs. However, to speak of contempt as preventative would be misleading; rather it is more properly a deterrent and does not always prevent judicial prejudice.
The restrictions sub-judice places on publicity apply from the time when the procedures of the criminal law have been set in motion. This means when a person has been arrested or charged, or if a summons or information has been issued. The New South Wales Reforms Commission recommends the starting point for sub-judice in that state begins with:
The arrest of the accused
The laying of the charge
The issue of a court attendance notice and its filing in the registry of the relevant court, or
The filing of an ex-officio indictment
However, under the Contempt of Courts act, 1971, in India, the contempt law of sub judice is in motion even if a warrant or a summon has been issued whereas the new south wales commission does not take in the warrant of arrest issue in view.
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