Sub-judice or subterfuge
Writing about a sub-judice matter, does not amount to trial by media, says DR GLADSTONE A D’COSTA
Our country has been hit by an unprecedented spate of scams in recent months, each more scandalous than the other, that involves ever increasing sums of money. The media has been working overtime in its quest for “breaking news” in hot pursuit of the so-called political leaders allegedly involved in these rip-offs. On many an occasion, the journalists attempts to question them has met with a standard retort “the matter is sub-judice, so I cannot answer” thereby ducking the question. Prominent among those using this line recently, have been A Raja and S Kalmadi. One cannot help but wonder what manner of legal succour the term “sub-judice” provides to be used, so liberally and conveniently, with the sole purpose of evading embarrassing questions from the media. The term “sub-judice” literally means “under a judge” or “under consideration of a judge or court”. Section 10 of the Civil Procedure Code deals with the “Doctrine of Res Sub-Judice”.It provides that no court shall proceed with the trial of any suit, in which the matter in issue is also directly and substantially in issue in a previously instituting suit between the same parties where such suit is pending in the same or any other court in India. However, a pending suit in a foreign court doesn’t bar the courts in India, from trying a suit founded on the same cause of action.
For the application of the doctrine of Res Sub-judice, the following conditions must be satisfied: 1. A previously instituted suit is pending in a Court. 2. The matter in issue in second suit is also directly and substantially the same as in the previous suit. 3. The previously instituted suit is still pending in same court or any other court in India. 4. The parties in two suits are same. 5. The court in which previous suit is pending has the jurisdiction to try such suit.
Section 10 is enacted to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.
Section 11 deals with a somewhat similar sounding term “Res Judicata” which states that no court shall try any suit or issue in which the matter directly and substantially in issue, has been directly and substantially in issue in a former suit, between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a competent court to try such subsequent suit or the suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Neither of these terms even remotely resembles the context in which they are used by our so-called leaders, who invoke a gag order on any matter, which is in court. Is this rational or is it a ploy, to evade awkward questions?
In many countries, including India, it was considered inappropriate to enter into an extensive public debate on a matter that is in court. The practice has been abandoned in most countries; however, its origin is interesting. In countries where the judicial process operates by the jury system, it was believed that members of the jury selected from the lay public would be unduly influenced by public debate, rather than by evidence presented in court. Therefore, juries are often sequestered during trial. India follows the bench system; and the learned judges who are custodians of our laws, are appointed on the basis of their learning, wisdom and experience. To suggest that they can be so influenced is to cast aspersions on their capabilities. Courts in relation to petitions under the RTI, have already ruled that “In so far as the matter being sub-judice is concerned, this Commission has, time and again, held that a matter being under sub-judice, is not a ground to deny the information, unless covered under any other exempted provisions of the RTI Act.” In yet another ruling, “The RTI Act provides no exemption from disclosure requirement for sub-judice matters. The only exemption in sub-judice matter is regarding what has been expressly forbidden from disclosure, by a court or a tribunal, and what may constitute contempt of court: Section 8(1) (b).”
Even in regard to the matter where the prosecution is still continuing, the Central Public Information Officer can provide the information subject to provisions of Section 10(1) of the Right to Information Act, 2005 by applying the doctrine of severability. The speakers of the Lok Sabha and the Gujarat assembly are on record on different occasions, as having permitted debates in matters that are sub judice. With regards to media coverage, the Delhi High Court has ruled that writing about a sub-judice matter, does not amount to trial by media, and it should not be restrained.
The concern appears to be that in answering questions on a matter, that is sub judice, the individual may be slapped with a contempt of court order. It is rather amusing to see that someone who is accused of pilfering thousands of crores of rupees, is so concerned about contempt. However, this being the general concept, it is worth having a closer look.
1. Civil Contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.
2. Criminal Contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter, or the doing of any other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding,or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
(a) ‘High Court’ means the high court for a state or a union territory and includes the court of the judicial commissioner in any union territory. Because various judicial rulings appeared to go against the spirit of these definitions, the Constitution Commission (NCRWC) reviewed the situation and as a result, the Contempt of Court (Amendment) Bill 2004 was passed by the Lok Sabha in 2006 whereby the court may permit in any contempt proceedings “justification by truth as a valid defense if it is in public interest and the request for invoking it is bona fide.”
Mr Justice G N Ray in a highly elucidative lecture on August 31, 2008 summed it up as “Most public matters before judges are simply ‘in court’, and not necessarily sub-judice to the extent that voicing one’s views about them publicly would merit contempt charges”. Whilst criticising a learned judges’ competence, knowledge or integrity would surely invite contempt proceedings, the mere public discussion of a matter need not.
So, the next time a politician ducks a question using the sub judice excuse, feel free to tell him that he is talking hogwash. (The author is a Member, NEC, Voluntary Health Association of India.)
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Goan Mafiosi
By Anthony Simoes
Do we use the word ‘mafia’ very loosely? I ask because of the number of times I read it in newspapers and magazines nowadays. In my youth, the word was hardly ever used. It probably caught on first with the book and then the movie; ‘The Godfather’. There you had Don Corleone making offers that no one could refuse.
Initially, I associated the mafia with Italians in the US. But Hollywood notoriously labels and stereotypes anyone and everyone. Only much later I realised that Italians were mostly victims of the mafia, which was overwhelmingly Sicilian, with their ‘la Cosa Nostra’ and their ‘Omerta’.
One associated the mafia in America with moonshine, gambling, prostitution, protection rackets, contract killing, vote rigging and assorted strong-arm tactics. It was only after the US Internal Revenue Service started nailing the Dons that lawyers and chartered accountants moved in, and revolvers and sub-machine guns slowly gave way to profit-and-loss statements and spreadsheets.
In the Bombay of the ’50s, ’60s and ’70s, there used to be a smuggling mafia controlled by Dons like Haji Mastan, Yusuf Patel, Karim Lala and a few minor Khans. Those were the days of foreign pant pieces, perfumes, electronic goods and, of all things, razor blades. But the top spot was always held by gold. Import of these items was banned. It helped generate huge amounts of black money, as white collar disposable income found its way into Swiss Banks via the godfathers, bureaucrats, customs officers, and all the others in the bribery chain.
Closer to home, during the 18 years I lived in Anjuna and Calangute, I saw tourism take off. The builder lobby came riding piggyback on tourism. Hotels and resorts soon gave-way to rent-backs. That’s when the construction industry was taken over by the mafia. The small and medium Goan builders, commission agents and land grabbers have now been swallowed by the Bombay builder and the Delhi scamster.
On the seaward side, small-time Goan goons with panchayat patronage became mini-mafias, with rooms for prostitution and shacks for drugs, with help from taxi drivers and the men-in-uniform. Now they too are being marginalised by mega-mafias from other parts of India; even neighbouring Nepal, Bangladesh, Pakistan-Occupied Kashmir… Even foreigners are moving in – Russians, Brits, Germans, Israelis, Swiss, Estonians, Ukrainians, Nigerians…
In quiet places like Arambol, Morjim, Keri and Palolem, foreigners have established their own enclaves complete with their own lingua franca on menus, signboards and posters, as if they have ‘Most Favoured Nation’ status.
All this was predicted almost two decades ago by Dr Nandakumar Kamat. Unfortunately, a prophet is never honoured in his own bailiwick. Or, as my mercenary mate would say, “What does it profit a man if he cannot leverage his own prophecy for financial gain?” Some even ridiculed the good ‘dotor’ by calling him a prophet of doom. Others labelled him as an agent of the tourism lobby in South East Asia!
In our quest for development and modernity, we Goans have come a long way. We now have an iron-ore mining mafia, a sand and quarrying mafia, a drug mafia (but no drugs in Goa), an illegal pisciculture mafia, a gambling mafia, an international sex-trade mafia, a scrap mafia, an electricity-stealing mafia and a water mafia.
But, instead of targeting these mafias, our government is going after NGOs and citizens’ groups that are raising their voices against these mafias, which can overwhelm civil society as we know it. These issues have been identified by the good ‘dotor’, who is truly a son of the Goan soil.
At least now let us wake up to the latest mafia he has identified – the ‘Hydrocarbon Mafia’. In his own words: “Goa is a central operations theatre, a secure mini-hub for interstate mafias dealing with industrial alcohol and petroleum hydrocarbons. The Goan Hydrocarbon Mafia has regional and national links, with a sizeable number of Nepalese and Bangladeshis – the international links are yet to be discovered. The regional links cover the entire area between Silvassa and New Mangalore Port…”
When Goa is the smallest state in India, we must ask ourselves why we are so big when it comes to mafias.
