Clarity Needed On Lawyers Voicing Opinion On Sub-Judice Cases, Says Top Court

The Supreme Court said there’s a need for clarity on lawyers voicing their opinion in public about pending cases even when they represent the parties involved.

The Supreme Court bench, headed by Justice Arun Mishra, observed that it may be possible that in certain cases, especially in criminal trials, the reputation of a person may be affected due to public discussions on sub judice cases by the lawyers as the accused may be acquitted later.

The top court was hearing a contempt petition filed by Attorney General KK Venugopal against Advocate Prashant Bhushan for his tweets about court proceedings in a petition challenging the appointment of M Nageshwar Rao as interim director of the Central Bureau of Investigation.

Senior Advocate Arvind Datar said he doesn’t speak to the media about cases he is arguing himself and it’s better to wait for the judgment. But backed transparency in cases involving public interest. “It is very natural for things which impact people ultimately to be talked about in the media and the press,” he told BloombergQuint. “Also, the best people to comment on the issues are the lawyers who are appearing in the cases. There are certain legitimate interests of transparency which are fulfilled.”

Venugopal argued that a counsel appearing in the case should desist from making comments in the press while it’s sub judice. But if they are only narrating what transpired in the court, that’s permissible, he said.

According to Advocate Indira Jaising, media trials are not to be encouraged since they are likely to prejudice a litigant, but this can hardly apply to issues of national importance that affect the functioning of institutions and not of individuals. “If commenting on pending proceedings is contempt, then every single television channel must be held guilty of contempt every day. Court proceedings are the stuff of news everyday 24/7.”

KTS Tulsi, senior advocate and Member of Parliament, agreed. Stressing that lawyers should not be commenting on the cases which are sub judice, he said it becomes difficult in certain situations. “If the media chooses to launch a tirade for or against a party, it becomes difficult to ensure the scales will remain even and I think in spite of the guidelines laid down by the Supreme Court, they are being violated by some media channels,” he told BloombergQuint. “It’s correct that lawyers should refrain from analysing the material in the media, but the media must also behave in a more responsible manner so that no one suffers on account of media trial.”

In the Supreme Court today, the attorney general said he doesn’t wish to seek any punishment for Bhushan but there needs to be a settled position on the point. “Prashant Bhushan made a statement that the government has misled the court by producing a fabricated copy of a document. The allegation affects me as AG. You can’t go about accusing people left and right. An end has to be put to this.”

Solicitor General Tushar Mehta, who was appearing for the central government in their case against Bhushan, said they request, insist and will in the due course of the hearing justify the need for punishment in the particular case.

The court issued a notice to Bhushan and will hear the matter on March 7.

The top court also made another observation on certain kind of petitions that are filed and then withdrawn. “All kinds of allegations are made in the petitions and then they are withdrawn before we deal with them. We are really worried about what’s going on these days.”