Discussion on sub judice Matters*
It is the absolute privilege of the Legislatures and members thereof to discuss and deliberate upon all matter pertaining to the governance of the country and its people. Freedom of speech on the floor of the House is the essence of parliamentary democracy. Certain restrictions on this freedom have, to a limited degree, been self-imposed. One such restriction is that discussions on matters pending adjudication before courts of law should be avoided on the floor of the House, so that the courts function uninfluenced by anything said outside the ambit of trial, in dealing with such matters.
While applying the restrictions regarding the rule of sub judice, care has to be taken to see that the primary right of freedom of speech is not unduly impaired to the prejudice of the Legislatures. In this context, the Speaker ruled:
The rule whether a motion which relates to a matter which is under adjudication by a court of law should be admitted or discussed in the House has to be interpreted strictly. While on the one hand the Chair has to ensure that no discussion in the House should prejudice the course of justice, the Chair has also to see that the House is not debarred from discussing an urgent matter of public importance on the ground that a similar, allied or linked matter is before a court of law. The test of sub judice in my opinion should be that the matter sought to be raised in the House is substantially identical with the one on which a court of law has to adjudicate. Further, in case the Chair holds that a matter is sub judice, the effect of this ruling is that the discussion on the matter is postponed till judgment of the court is delivered. The bar of sub judice will not apply thereafter, unless the matter becomes sub judice again on an appeal to a higher court
[ L.S. Deb., 9-5-1968, c. 3154].
It is a well-established rule that discussion on a matter which is sub judice is out of order [ lbid., (II), 20-3-1956, cc. 3143-44] , and it has been held that a matter is not sub judice until legal proceedings have actually started [L.A. Deb., 13-2-1946, pp. 924-25] . The question whether a particular matter is sub judice is decided by the Speaker on the merits of each case.
A matter does not become sub judice if a writ petition for admission is pending before a court [L.S. Deb., 6-9-1966, c. 9476.-It was also held that the writ petition could not stand in the way of legislation] .
Under the Rules of Lok Sabha, any matter which is under adjudication by a court of law having jurisdiction in any part of India cannot be raised in the House in any form, such as questions [Rule 41(2)(xvii) ] , adjournment motions
[ Rule 58(vii); H.P. Deb.,(II), 9-3-1953, cc. 1579-81] , motions [ Rule 186 (viii)] , resolutions
[ Rule 173(v)] and cut motions [ Rule 210(viii)] . An adjournment motion, though admitted, cannot be proceeded with at the appointed hour if by that time the subject-matter thereof has become sub judice [L.A. Deb., 24-2-1938, p.1104; 25-2-1938, pp. 1220-21] . If the subject matter of an adjournment motion consists of two parts and one part becomes sub judice after leave of the House to the moving of the motion has been granted, discussion on the motion is restricted to the other part which is not sub judice [Ibid., 13-2-1946, pp. 958-59] . A resolution was also not allowed to be moved as the matter had since become sub judice [ P.Deb. (II), 23-11-1950, cc. 542-43].
The rule has been extended to matters pending before a parliamentary committee, any statutory tribunal or statutory authority performing any judicial or quasi-judicial functions or any commission or court of inquiry appointed to inquire into, or investigate any matter. Such matters are not ordinarily raised by way of a question, an adjournment motion, a resolution, motion or cut motion. The Speaker may, however, admit a question in case it refers to matters concerned with procedure or subject or stage of inquiry if it is not likely to prejudice the consideration of the matter by the tribunal or commission or court of inquiry [Rule 41(2)(xxii)]. Likewise, the Speaker may, in his discretion, allow any such matter being raised in the House, on an adjournment motion, resolution, motion or cut motion as is concerned with procedure or subject or stage of inquiry if he is satisfied that it is not likely to prejudice the consideration of such matter by the statutory tribunal, statutory authority performing any judicial or quasi judicial functions, or commission or court of inquiry [Rules 59, 175, 188 210(xii)] .
A question on a subject under police investigation is not disallowed on the ground that the matter is sub judice. However, questions regarding matters under police investigation have been discouraged; members in possession of any particular and reliable information about a matter under police investigation have been advised to pass on that information to the Minister concerned [L.S. Deb., 7-4-1958] .
A member, during the course of his speech, is required not to refer to any matter of fact on which a judicial decision is pending [ Rule 352(i) ] . Discussion on a matter which is sub judice is out of order [ L.S.Deb., 20-3-1956, cc. 3143-44; L.S. Deb., 10-5-1956, cc. 15736-40 ] . On an objection being raised that a member should not be allowed a quote from a document as it would prejudice a case pending judicial decision, the Speaker permitted the member to quote only that portion which was relevant to contradict points raised by the Minister in his statement laid on the Table [ Ibid., 25-7-1967, cc. 14587-93 ] .
So far as privilege matters are concerned, a Legislature is the sole judge of its privileges, and the rule of sub judice does not apply.
The rule of sub judice cannot stand in the way of legislation. If the rule of sub judice were to be made applicable to legislation, it would not only make Legislatures subordinate to the courts in that matter but would make enactments impossible because numerous cases concerning a large number of statutes await at all times adjudication in one court or the other. Parliament's main function to make laws will thus come to a standstill. This is neither sanctioned by the Constitution nor justified on merits. Legislatures are being supreme and sovereign in the matter of making laws and there is no bar on their work in the field of legislation. The members, however, refrain from referring to the facts of a case pending before a court, when a Bill is under discussion in the House.
The Speaker has held that discussion on a Bill, the subject-matter of which is sub judice by virtue of an appeal pending in the Supreme Court, is also in order provided members refrain from referring to the facts of the particular case under appeal, as thereby the debate in the House could not prejudice the hearing of the appeal by the Supreme Court [L.S. Deb., 26-9-1955, cc. 15235-54].
A Bill seeking to replace on Ordinance can be discussed in the House notwithstanding the fact that the Ordinance has been challenged in a court of law and the court has issued rule nisi to the Government [Ibid., 22-11-1965, cc. 3126-29; 27-8-1974, cc. 172-80] .
A point of order was raised in the House that the Resolution which had been moved disapproving of the Essential Services Maintenance Ordinance, 1968, could not be discussed as the Ordinance was pending adjudication before courts of law. The point of order was ruled out on the ground that "the rule of sub judice does not apply to legislation and the Resolution to disapprove the Ordinance is in the nature of legislation because all it seeks to do is to disapprove the Ordinance, i.e., to repeal the legislation which is in force, and that an Ordinance has the same force as a law of Parliament". It was held that "Parliament is supreme and sovereign in the exercise of its legislative powers and cannot be paralysed by reason only of the fact that a writ petition against the constitutionality of the existing legislation is pending in a court of law" [Ibid., 11-12-1968, cc. 152-54 ].
As regards a matter which is sub judice and which has been referred to in a speech or debate or in any statement in the House, the Speaker has no power to order expunction of any words or phrases merely on the ground that they relate to a matter which is pending for a judicial decision in a court of law. Where a member insists on referring to a matter which is sub judice in spite of the Chair asking him not to do so, the Chair may ask him to discontinue his speech forthwith. The Speaker may also observe that the member should not have referred to a matter which was sub judice. Both the statements would then be on record, but the Speaker cannot and should not order expunction of such words.
A Committee of Presiding Officers has considered the scope of the rule of sub judice, and recommended the following guidelines [ Page Committee Report, op. cit., Para 30 ].
 Freedom of speech is a primary right whereas rule of sub judice, is a self-imposed restriction. So where need be, the latter must give way to the former.
 Rule of sub judice has no application in privilege matters.
 Rule of sub judice does not ordinarily apply to legislation.
 Rule of sub jducie should apply in regard to proceedings before civil and criminal courts and courts martial in any part of India and not ordinarily to other jducial or quasi-judicial bodies such as tribunals etc., which are generally fact-finding bodies.
 Rule of sub judice applies to questions, statements, motions (excluding motions in respect of leave to introduce a Bill, take a Bill into consideration, refer a Bill to a Select/Joint Committee, circulate a Bill for eliciting opinion thereon, pass a Bill), resolutions, and other debates.
 Rule of sub judice applies only in regard to the specific issues before a court. The entire gamut of the matter is not precluded.
 In case of linked matters, part of which is sub judice and part not sub judice, debate can be allowed on the matters which are not sub judice.
 Rule of sub judice has application only during the period when the matter is under active consideration of a court of law or courts martial. That would mean as under:-
(a) In criminal cases _ From the time charge sheet is filed till judgment is delivered.
(b) In court martial _ From the time charges are preferred till the charges are confirmed.
(c) In civil suits _ From the time issues are framed till judgment is delivered.
(d) In writ petitions _ From the time they are admitted till orders are passed.
(e) Injunction petitions _ From the time they are admitted till orders are passed.
(f) Appeals _ From the time the appeal is admitted till judgment is delivered.
[ *Source: Page No. 946 to 950 of Practice and Procedure of Parliament. By Dr. Subhash C. Kashyap; Fourth Edition 1991. Published for Lok Sabha Secretariat ]