WHEN Prime Minister Narendra Modi convened the all-party conference of Kashmir’s leaders, the first after the unconstitutional abrogation of Article 370 on Aug 5, 2019, they doubtless wished to raise this one issue which has been agitating the minds of their people. The latter, in turn, expected their leaders to voice their feelings in that conference. No other issue disturbs Kashmiris as much as this does.

But none, except perhaps the government, reckoned without the ghost. One Muzaffar Hussain Baig, MP and lawyer, shouted as soon as Article 370 was mentioned “it is sub judice”. Strangely, none questioned him as they were taken by surprise. It is time this objection, sub judice, commonly used in parliament to throttle debate is laid to rest. I leave it to the Kashmiris to judge Baig and his antics. Prime Minister Narendra Modi must have felt happy and grateful.

Rule 352 of the Rules of Procedure and Conduct of Business in the Lok Sabha says “a member while speaking shall not refer to any matter of fact on which a judicial decision is pending”. It seeks to protect criminal proceedings in which the guilt or innocence of a person is in issue.

Civil matters are not excluded altogether. But issues of constitutional law surely are. For they pertain to law; not facts. Article 370 of India’s constitution gives constitutional form to an accord between India’s leaders (Jawaharlal Nehru, Vallabhbhai Patel and Maulana Azad which was negotiated from May to October 1949 in New Delhi) and Kashmir’s leaders (Sheikh Mohammed Abdullah, Mirza Afzal Beg and M.A. Shahmiri).

It is time this objection, sub judice, is laid to rest.

Article 370 touches Kashmir’s identity. There is another rule which, however, pertains to motions while Rule 352(1) pertains to members’ conduct generally. There are cases galore of the press and public discussing constitutional matters even while the supreme court is seized of that particular issue.

The decision of the European Court of Human Rights in the Sunday Times case is clear. Nearly 400 claims against Distillers Ltd, manufacturers of thalidomide, were pending when the Sunday Times published an article which inter alia urged the company to make a generous settlement. Later it proposed to publish an article examining the precautions taken by the company before the drug was sold. On the attorney general’s request, the divisional court granted an injunction to restrain publication of the article, holding that it would create a serious risk of interference with the company’s freedom of action in the litigation. The court of appeal discharged the injunction, on the ground that the article commented in good faith on matters of outstanding public importance.

The House of Lords restored the injunction, holding that it was a contempt to publish an article prejudging the merits of an issue before the court. The Sunday Times claimed that the decision of the House of Lords infringed on freedom of expression that was protected by Art 10 of the European Convention on Human Rights. Before the European Court of Human Rights, the main issue was whether, under the said article, the ban on publication was “necessary in a democratic society … for maintaining the authority and impartiality of the judiciary”. By 11 to nine votes, the court held that the ban had not been shown to be necessary for this purpose.

The famous Phillimore Committee on the law of contempt of court said: “When the Sunday Times case was before the House of Lords, Lord Reid and Lord Simon cited with appro­val a defence formulated by Chief Justice Jordan of New South Wales in 1937 in the following terms: ‘…if in the course of ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a lawsuit it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or denunciation may, as an incidental but not intended by-product, cause a risk of prejudice to a person who happens to be a litigant at the time.”

A study of the Rules of the House of Commons and its practice reveals that the rule of sub judice was not intended to bar public discussion of public matters but public discussion of individual or private matters. When he spoke as he did Baig was fully aware of the fact that in the last two years the press and the public have been freely discussing Article 370 without objection from his friends in New Delhi.

The writer is an author and a journalist based in Mumbai.

Published in Dawn, September 18th, 2021