The sub-judice rule vis-a-vis the freedom of press
The rationale behind sub-judice rule is to keep the judgment as objective as possible since the judges like any human being are open to media influence.
Court has its dignity and it should not be tarnished.
Press has its freedom and it should not be curtailed.
In the words of Justice Felix Frankfurter, "A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other, both are indispensable to a free society."
The recent events unfolded in a way that seemed like a conflict between the judiciary and the press to many. The 16 May notification of the Supreme Court left me baffled initially. It spread uncertainty whether publishing any news whatsoever on ongoing cases was deemed 'unexpected' or not.
Anxiously I was waiting for a follow-up clarification and subsequently, it did come.
The Law Minister Anisul Huq said that there is no bar to reporting rather than on the reporters' personal opinion about the case. His statement actually resonated the sub-judice rule that exists in our country.
According to the sub-judice rule, it is considered inappropriate to remark publicly on cases under judicial consideration. The rationale behind sub-judice rule is to keep the judgment as objective as possible since the judges like any human being are open to media influence. Such rule prevails in countries like England, Canada, Ireland, New Zealand, Australia, South Africa, India, Pakistan and few others which may recognize any comment on ongoing cases as an offence.
In Bangladesh, this is not the first time that the media has been cautioned on commenting on sub-judice cases.
Previously, on 8 March 2014, the High Court warned that it would issue contempt of court rule against the media who would not refrain from publishing statements, articles or anything exceptfor the reports of proceedings.
In a different case of Keya Cosmetic Ltd. Vs Dewan Hanif Mahmud (judgment dated 4 September 2014), it was observed by the court that publishing report or making comments on the sub-judice matter tends to influence the decision-making process of the judges and amounts to interference with the independence of the judiciary.
To that end, the notice of the court serves nothing more than just as a reminder.
However, the meaning of an ongoing or sub-judice case is not defined in our legislation. In India, the Contempt of Courts Act 1971 explains which cases can be categorized as ongoing. But, we have no on paper explanation as such. A case in our judicial setting remains pending before the court for a really long time; going through the stages of appeal, review, and revision. The duration of the sub-judice state of a case may last more than several years. Such a condition may not prove to be conducive for apt-time journalism.
Also, it is unclear if the notice of the Supreme Court applies to cases pending before subordinate courts.
Moreover, the constitutional right to freedom of the press is a qualified right subject to anything involving contempt of court (Article 39 b).On the other hand, the existing law on contempt of court lacks comprehensiveness. The new law enacted in 2013 mentioned about freedom of press conspicuously but it was repealed later on. The Contempt of Courts Act 1926 is in force again which is not elaborate enough to enable the readers to regulate their conduct.
According to the latest clarification by the Supreme Court, airing or publication of news that may hurt the court's image and reputation, and influence the case proceedings are not expected. In this regard, the journalists may need to apply their own discretion to sort out such news and should restrain from publishing the same.
In all honesty, the dignity of the judiciary must be guarded uncompromisingly so that the people do not lose their faith in this organ of the state.But at the same time, there should be enough room for constructive criticism which is to be publicized for the greater good.
"The Bangladesh Supreme Court always believes in the freedom of the press"-a court publicly clarifying its acknowledgement to the freedom of press is indeed a positive affirmation from the last notice.
Raihan Rahman Rafid is
Sub-Editor at the Daily Observer