Obliviating the oral regime

The Supreme Court recently passed an important judgment on the validity of oral directions that do not find their way to the written record.
Obliviating the oral regime

“Judgments cannot be treated as mere counters in the game of litigation.”

The above excerpt from the judgment of Lord Atkinson in Somasundaran v. Subramanian, encapsulating the sanctity and solemnity of court orders and judgments, was quoted with approval by Justice Chinnappa Reddy in State of Maharashtra v. Ramdas Shrinivas Nayak, where the Supreme Court was seized of the question as to whether the State could be allowed to resile from the concession made before the High Court as recorded in the judgment.

During the course of hearing before the Court, AK Sen, who had appeared for the State of Maharashtra before the High Court, protested that he never made any such concession, and invited the Court to peruse the written submissions made by him in the High Court. However, the Supreme Court declined the request and categorically observed that, “we cannot and we will not embark upon an enquiry. We will go by the judges’ record.”

The Court mentioned that “matters of judicial record are unquestionable” and that it was restrained by judicial decorum and public policy from launching an inquiry as to what transpired in the High Court. It was further observed by the Court,

“We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.”

The Supreme Court accorded utmost precedence to the judicial record; not allowing it to be contradicted by either the lawyer or the litigant, except the judge herself.

The recent judgment of the Supreme Court in Salimbhai Hamidbhai Menon v. Niteshkumar Maganbhai Patel & Anr evokes the same spirit and principle enunciated in RS Nayak, and observes,

Judges speak through their judgments and orders. The written text is capable of being assailed. The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable.”

This observation was made in relation to the procedure followed by the High Court in issuing an oral direction restraining the arrest of the first respondent. While the text of the order of that particular date did not contain any such direction, the subsequent order passed by the High Court adverted to such oral direction and directed immediate release of the accused. The Supreme Court found it ‘irregular’ and observed that a specific judicial order was necessary for grant of an interim protection against arrest to the accused. It also observed,

“Oral observations in court are in the course of a judicial discourse. The text of a written order is what is binding and enforceable.

In this matter, the Supreme Court has gone even a step further from RS Nayak and said that even judges cannot contradict the judicial record and are accountable for their actions.

The Supreme Court has confined its remarks to the shortcomings of issuing oral directions in a criminal proceeding and the concomitant necessity of a written order. It has distinguished a criminal proceeding from a civil proceeding based on the infusion of interests of State and society in prosecution of the former, and the same yardstick has been consistently applied by the Supreme Court in civil cases also. The principle is well-settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.

In Associated Tubewells Ltd v. RB Gujarmal Modi, the Supreme Court had deprecated the practice of referring to a conversation which took place in Court but did not find a place in the written order, stating that,

“3. We cannot, however, part from this matter without placing on record our very strong disapproval of the course that the advocate — a very Senior Counsel of this court — has adopted in making this application. In the review application he has referred in detail as to what, according to him, happened in court on the prior occasion and what each Judge said in the course of the arguments. The review application sets out at length what the presiding Judge said and expressed in the course of the arguments and what his views were and what the other Judges of the Bench said and expressed and what the view of each was. These statements are followed by a confident assertion how and why the application was dismissed.

5. Judges of this Court cannot be dragged into a controversy as to whether the statements ascribed to them are correct, or express correctly and fully what they had in view. .... ..It is not consistent with the dignity of the Court and the decorum of the Bar that any course should be permitted which may lead to controversy as to what a Judge stated in Court and what view he held. Such matters are to be determined only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. To permit the atmosphere of the Court to be vitiated by such controversy would be detrimental to the very foundation of the administration of justice.”

In earlier judgments as well, the Court had set the tone for the course to be followed by the judges in abstaining from issuing oral directions. Now, with its latest pronouncement in Salimbhai, the Supreme Court has decisively and succinctly laid down the reasons for eschewing such conduct, observing,

“Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse. Most High Courts deal with high volumes of cases. Judicial assessments change with the roster. Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations.”

A couple of months ago, the author had the misfortune of being caught up in such an ugly spectacle. Though there was no written order/direction by the judge, the counsel for the other side insisted than an oral direction was indeed issued. To the great dismay and discomfiture of the author, the judge observed that it is a long-standing practice of this (Delhi) High Court that, at times, the Court issues oral directions and the parties abide by such directions.

Hopefully, with the latest pronouncement of the Supreme Court, such things will cease in all High Courts. It can be very embarrassing for the court and the counsel. Your humble author can only add that in this day and age of virtual hearings, written orders assume even greater significance. It requires no gainsaying that virtual hearings are prone to frequent disturbances and disconnections, and this could potentially and occasionally lead to oral directions of the court or oral undertakings of the counsels going unnoticed, unheard or unregistered by the parties concerned. And when such oral directions/undertakings are not recorded in the written order, it may lead to a myriad of consequences and complexities; one such we have already seen in Salimbhai.

This may well change with the live transcription or telecast of court proceedings, as is done in the Central and State legislature/s and in jurisdictions like Australia, Brazil, Canada, England, Germany and US. While web portals like Bar & Bench, LiveLaw etc have been transcribing the court proceedings in a few matters, there has been no occasion for the court/lawyers hitherto to rely upon or refer to such transcriptions as means of confirming the oral directions/observations made by the Court. It is anybody’s guess as to whether the courts will repose their faith and trust in these online transcripts, or introduce a court-approved transcription/recording of proceedings.

But until then, Justice DY Chandrachud has sounded a cautionary note for all courts to follow, and rightly so.

Abhishek Gupta is an Advocate based out of New Delhi appearing in various courts, including the Supreme Court of India. He can be reached at abhishek_1509@hotmail.com.

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