By — R. Chandra Mouli

It’s a familiar refrain in the print or electronic media: “That’s all we can say now, because the matter is sub judice.” Any matter under judicial consideration, such as an ongoing or impending court case is prohibited from public discussion elsewhere because such comments may influence the judicial outcome.

The counsel for the Government, for example, can invoke the sub judice rule to impose a gag order to stop the Fourth Estate from commenting on the merits or demerits of a pending petition. A political analyst who gets carried away in a freewheeling interview may end up responding to ‘contempt of court’ proceedings. A corporate, already in a soup, may find extrication from litigation more difficult, if its spokesperson is found airing a biased view on the case.

While the civil procedure code is firm on sub judice, the democratic axis on which our country revolves enables the rule to be honoured occasionally in the breach, allowing for exceptions based on situations. Take the case of the Indian Parliament, which consists of elected representatives who are sworn to protect public interest.

In 1967, the recommendation of the Committee appointed by the Speaker of the Lok Sabha to examine the scope of rule of sub judice in a legislature, reiterates the sanctity of our democracy and its emphasis on freedom of speech. The Committee remarked that “freedom of speech is a primary right whereas the rule of sub judice is a self-imposed restriction, so, where need be, the latter must give way to the former.”

Legal luminaries will rightly counter here that freedom of speech, while guaranteed by the Indian Constitution and other forward-looking democracies as an inalienable right, is not absolute. Such a view is best explained in the adage, “Your right to swing your arms ends just where the other man’s nose begins.” The import is… there exists a caveat of reasonable restrictions in the enjoyment of fundamental rights.

Moving to Constitutional Law, in the last five decades Parliament has had the freedom, or legislative privilege, to discuss matters of public interest and importance even while relevant cases were pending in court. Why is this leeway essential?

PDT Achary, former Secretary General, Lok Sabha, says if the rule of sub judice is rigorously followed, any person can stymie a debate in the House by filing a case on the subject in any court, and therefore the plea of sub judice should not be stretched to absurd lengths. Here too, parliamentarians are advised to follow a self-imposed restriction by not revealing confidential information they may have access to, such as the name of a whistleblower.

The meaning of “sub judice” is Under a Judge. A case that is being heard or decided in a court of law falls under this definition, as most of us know. However, the law does not limit discussion on a company, group or person whose matter is pending in court; instead, the restriction is on passing judgement on the legal question pending for answer in the Court.

Why is such restriction a sine qua non? Justice G.N. Ray, in his Law Lecture in 2008 on “Reasonableness of restrictions on reporting on sub judice matters,’ said:

“No judge fit to be one is likely to be influenced consciously except by what he sees and hears in court and by what is judicially appropriate for the deliberation. However, judges are human. There is a powerful pull of the unconscious. Since judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible publication.”

Let’s take a use case, which at present is pending in court, yet oft debated in the media. Invoking the caveat of reasonable restrictions, staying within the boundaries of law, and bearing in mind the company’s primary output is a metal of national interest, we will examine the case of Sterlite Copper, which during its peak accounted for 36% of India’s copper production. Readers can reach their own conclusion.

ALL THOSE IN FAVOUR?

Corporate India tops the list. Industry owners, manufacturers and technology providers know the effort they put in to create an edifice. A fair chance is all they want for Sterlite Copper to either prove it did no wrong or redeem itself if found guilty by the Court.

One-time activists now turned loyalists: When the plant was in operation and before the protests started, Thoothukudi was a busy town in Tamilnadu, employment was at an all-time high, downstream industries supported by the smelter were flourishing, and the township was basking with inflow of statutory revenues that are a positive fallout of economic and commercial activity emanating from the large format manufacturing plant with cumulative investment of Rs. 3,000 crores. Now, the number of vessels docking at the Port have dropped, transportation industry has taken a dip and those displaced by the shutdown of the plant are now earning one fourth their earlier income.

Industry Forums: Associations that represent metal import and export are keen to bring an end to scarcity of copper, which finds use in manufacture of diverse equipment and components. With the core of every green energy gadget requiring significant amount of copper, with waiting period going up for imports, and assembly lines slowing down due to delay in delivery, wholesalers, bulk buyers, and intermediaries will heave a sigh of relief if the plant were to reopen soon.

ANY AGAINST?

Quite a few.

Environmentalists say the plant has caused damage to the green belt in Thoothukdi and cite air pollution reports when the plant was in operation, to prove their point. Activists say ground water has been polluted and respiratory illness was on the rise, almost painting an ‘Erin Brockovich’ type of situation. They also counter any communication from fact-finding missions or official survey reports with data of their own. Several political parties have opposed the re-opening.

Will the current administration in Tamil Nadu, renowned for reforms, pro-people governance and a track record of progress in the past and present, take a balanced view of the situation by weighing socio-economic benefits against possible environmental concerns? It is likely the matter being in the purview of the judiciary, the State leadership will wait for the law to take its own course, and await regulatory consent as well, from the Tamilnadu Pollution Control Board.

Relevant to mention that Sterlite Copper’s plea to reopen the smelter is pending before the Supreme Court. For various reasons, one being the pandemic, the matter has been heard by the Hon’ble Court only on two occasions in the last two years.

In this context, a Latin phrase that translates as ‘where are you going,’ comes to mind. It is voiced in a situation wherein a challenging decision must be faced.

For activists and the appellant, the question is, will the verdict, when delivered, maintain status quo or reopen the plant, and will either outcome be accepted as divine judgement? Quo Vadis?

(The writer is a communications consultant, columnist, and former journalist. Views expressed are his own and not necessarily that of FinancialExpress.com)