Judges playing devil's advocate, effect on lower courts - Experts speak on controversy surrounding oral remarks
The issue of judges making controversial remarks during court hearings and copping abuse for the same on social media has cropped up again, this time in the context of a sensitive and polarising issue.
On July 1, the Supreme Court came down heavily on former BJP spokesperson Nupur Sharma for her remarks on national television about Prophet Muhammad which had led to violent protests and riots in many states.
A Bench of Justices Surya Kant and JB Pardiwala had remarked that since Sharma was single-handedly responsible for fanning the flames across India, she should apologise to the whole nation.
"The way she has ignited emotions across the country. This lady is single-handedly responsible for what is happening in the country. We saw the debate on how she was incited. But the way she said all this and later says she was a lawyer, it is shameful. She should apologise to the whole country," Justice Kant had said in open court.
As is usually the case, the oral remarks did not eventually find their way to the order passed by the Bench, meaning that Sharma only received an unofficial rap on the knuckles.
However, the exchange was widely reported by the media, leading to a big hue and cry from a certain section of the public. Social media platforms were abound with criticism of the judges, with some users even calling for the resignation of Justice Kant.
And it is clear that the online outrage has affected the judges, who, not for the first time, called upon social media platforms to regulate such opinions. In an event organised on July 3, Justice Pardiwala said,
"Attacks of judges for their judgments lead to a dangerous scenario where the judges have to think what the media thinks, rather than what the law actually says. This puts the rule of law on the burner, ignoring the sanctity of respect for the courts. This is where digital and social media needs to be regulated throughout the country to preserve the rule of law under our Constitution," he said.
The apex court last year authoritatively defended the right of judges to freely express their opinions while hearing cases. A bench of Justices DY Chandrachud and MR Shah made it clear that such dialogue between the Bar and the Bench, as well as the reporting of the same, are essential facets of the judicial process.
"We have to protect the judicial sanctity of the process. We have to make sure that High Court judges and Chief Justices are independent to make views. We have to make sure that media reports everything that happens in court so that we judges conduct proceedings with dignity," the Court had said.
The problem arises with the perception that these oral remarks, as opposed to utterances made by a particular judge with the aim of drawing closer to the truth, are regarded as the final opinion of the court as an institution.
However, as experts make it clear, these remarks are not legally binding and have no legal sanctity. The final and binding decision of a court is expressed through its judgments and orders.
As was made clear in the Election Commission case,
"Observations during the course of a hearing do not constitute a judgment or binding decision. They are at best tentative points of view, on which rival perspectives of parties in conflict enable the judge to decide on an ultimate outcome. This exchange of views, perspectives and formulations is but a part of evolving towards a solution which accords with justice according to law."
Having said that, should judges exercise restraint while hearing such sensitive cases? Is there a need for more responsible reportage on these remarks? Do these remarks have a bearing on the eventual outcome of a case?
Bar & Bench spoke to lawyers and former judges to get their views on these vexing questions.
Former Supreme Court judge, Justice Madan B Lokur
Judges often ask questions to elicit information or to get clarity on the submissions made by lawyers. Judges also make observations, but these are always tentative. The final conclusion of the deliberations is to be found in the written order or judgment, Justice Lokur explained.
"Occasionally, over-the-top observations are made both orally and in the written order or judgment. These are then discussed and debated by academics and the media, and naturally so. However, these debates and discussions should not descend to the level of personal criticism or attacks on the judges. This would amount to hitting below the belt, knowing fully well that judges don’t and can’t fight back."
Speaking on the effects of such observations made by judges, he said,
"Such observations do not influence the maker or judicial colleagues, but do have some impact on district courts, not so much the High Courts. They are treated as reflective of the “thinking” of the Supreme Court. For litigants, who are untrained in the law, such observations can be concerning. If such observations are made while a hearing is live streamed, it may be problematic."
Former Supreme Court judge, Justice Deepak Gupta
Oral remarks are bound to be made when there is an oral hearing, opined Justice Gupta.
"When a judge hears a case, he hasn’t made up his mind as yet, he hears both parties and decides order. During the course of hearing, he can put very uncomfortable questions to both sides. So, there is nothing wrong in making oral remarks, these are oral observations," he added.
Finding nothing wrong with judges making such observations, he said,
"I see no reason as Supreme Court has held that these oral remarks as right of free speech, they can be recorded. But then every oral observation can’t form part of the order...I know this is more in the context of the Nupur Sharma case but so what? That is what the judges strongly felt and they said it. There is nothing wrong."
According to Justice Deepak, people don’t understand how hearings take place, and unfortunately, they think that one remark amounts to the final decision. However, tomorrow, the same judge may change his remark after hearing the other side, he pointed out.
On the criticism these remarks evoke on social media, he said,
"I don’t have a problem with reporting, because it is part of the right to free speech. Only thing is judges, now knowing everything is going to be reported, should be a little careful about making remarks in general."
Explaining the mindset of a judge who makes such remarks during a hearing, he said,
"You see as a judge, when hearing a legal point, you sometimes have to play devil’s advocate, make certain remarks to know the real argument in the case. It’s just that we don’t understand hearing system and we think because the judge has said this, then he must be deciding like this."
Former Allahabad High Court Chief Justice Govind Mathur
"I also don't find any wrong in such remarks. We are having an open court hearing system and that is the golden thread in our justice delivery process. In open courts, advocates for parties as well as judges not only orally express, but emphasise their views just to arrive at an objective conclusion," Justice Mathur said.
Noting that such observations only gain traction when they are made in controversial cases, he pointed out,
"This process is quite normal during the course of hearing of any case, may it be a high profile one or otherwise. Court doesn't make any distinction in cases, but it is media that have a right to select the material as per its choice or to say on basis of the propagating value...But yes, courts and media both are supposed to act responsibly while making and airing such remarks."
He opined that such observations don't necessarily have an impact on the fate of any ongoing matter.
Senior Advocate Aman Lekhi
Former Additional Solicitor General Lekhi pointed out the nuances related to court proceedings, whose course cannot be ever worked out in advance even by the finest crystal-ball gazer.
"The proceedings involve a dialogue, an exchange of opinions and views. Restraint is the norm, but parties to the dialogue are meant to be a check on the other. A judge can legitimately correct any transgression and the lawyer equally has the obligation to respond to anything unfair or unjustified. Such behaviour is part of judicial etiquette...
...It is not uncommon to have oral observations made in the course of proceedings and it behoves the lawyer to contest them should the same be ungrounded or unfounded."
According to him, problems arise when one-sided opinions are not challenged or countered. It is not the expression of opinion, but want of contest which is wrong, he added.
"Volatile issues in a surcharged environment can be discussed with a sense of balance only when raw impulses are held in check to keep the mind focused on a fair outcome, though not necessarily favourable to one or all. This mandates moderation and caution in judicial conduct...Trained minds know off-the-cuff remarks for what they are. The uninitiated, however, may treat them as authoritative and as the hearings are open the possibility of such a consequence has to be factored."
Regardless, personal comments are uncalled for, Lekhi said.
"The critics themselves defeat the purpose of comment when they degenerate into abuse, as that closes conversation. Personal attacks are ad hominem comments denigrate the system and far from addressing the issue shut out debate. Movement from the issue to the individual shows a weakness in the criticism."
Former Civil Judge and Advocate Bharat Chugh
Chugh opined that oral observations and the verbal engagement that happens between the Bench and the Bar is important for a just, fair and informed adjudication of matters. This, in fact, makes the judicial process more transparent and better informed, he added.
"Such observations or tentative opinions held by the judge/courts serve the purpose of informing the counsel and parties of the initial perception/opinion of the court in the matter, thereby giving them an opportunity to try and persuade the court otherwise."
Pointing to the fact that judges are, after all, human, he said,
"They have views on the subjects and they are totally entitled to air them. They have as much a freedom of speech and express as any other citizen."
On the reporting of such remarks, he said,
"The nation is entitled to know the way judges perceive legal and social issues. Everyone understands (or at least should understand) that binding precedent is only that part which specifically translates into the judicial order/judgment...especially if there is no inconsistency between the views of the court (as expressed) and the final order."
In the Nupur Sharma case, he said that he did not see any inconsistency in the views aired by the Court and the final order of the Court.
"In either case, the Court found the petitioner undeserving of the relief she was seeking. While dismissing a petition such as this, the Court is not required to record elaborate reasons and, therefore, I do not see any legal concerns with the way proceedings were held and order delivered."
Advocate Hemant Batra
"It is a settled position that oral remarks and observations made by the presiding judges during court hearings have no legal sanctity. If that is so, then why do judges make casual and sometimes very serious oral remarks?"
According to him, judges should only speak to seek responses to their doubts and queries.
"Any opinionated remarks should be reflected only through their judgments and orders. The administration of justice should endeavour to accomplish objectivity, neutrality, and detachment," he added.
Observations made orally, even in good faith, can be misinterpreted by the parties concerned and even the general public, which can lead to a clouded perception of the justice delivery system, Batra opined
"Having said that, I am reminded of what Judge Sonia Sotomayor, Associate Justice of the US Supreme Court once wrote - 'all judges have cases that touch our passions deeply, but we all struggle constantly with remaining impartial'."
Advocate Pragya Paarijat Singh
The Supreme Court lawyer pointed out that observations and remarks made by the apex court remain a matter of discussion in public discourse for long, especially when it is a high profile or sensitive case.
"It is thus essential to exercise some restraint, all the more, when the matter is sub judice before the trial courts, for it may impact the final outcome and may have grave repercussions on the merits of the case."
In the Nupur Sharma case, Singh opined that it was highly irresponsible and unnecessary to have passed a remark holding her responsible for the violence and killings that took place subsequently.
"This was not a trial where her culpability had to be proved, but this might severely jeopardize the trial in the times to come for her in the lower courts. The same was not even a part of the daily order sheet, which clearly suggests that we have taken a u-turn from the recognized principle of law that nobody is guilty, unless proven so."
Such remarks must immediately be expunged from the record as they have no value in the eyes of the law, Singh opined.
"We all must adhere to rule of law which means that unless investigation is not done followed by filing of charge sheet and proper trial, any remark without a legal sanctity by the highest court of the land shall have a scarring effect," she added.