Comments made by the honourable court, whether as a directive or an observation during a case hearing, cease to fade from public memory easily
In 2010, the Supreme Court bench of justices Markandey Katju and Gyan Sudha Mishra while scrapping a single-judge bench order of the Allahabad High Cort which the bench found was based on extraneous considerations severely indicted the high court to the level of stating that “there is something rotten” there.
From calling out the nepotistic conduct of judges to prevalent corruption, the two judges asked for “some house cleaning” by the high court.
The remarks were not taken positively by the high court which filed an application before the apex court to expunge the remarks, which was outrightly dismissed.
The comments made by the bench were harsh but were directly linked to the case. A single-judge bench has passed an order which indicated apparent misconduct. So, in spite of the high court counsel’s argument that remarks by the bench had tarnished the image of the entire high court judges and would affect the function of judges, the apex court refused to expunge the remarks.
One can argue that even if the remarks were expunged, the fact that it was widely reported, it would have been tough for the court to have erased them from public discourse.
On 5 June, a group of retired judges, bureaucrats, and armed forces sent an open letter to Chief Justice of India (CJI) NV Ramana condemning the observation made by the bench of the Supreme Court against former BJP spokesperson Nupur Sharma, during the hearing of her petition filed seeking direction to club multiple FIRs filed against her in various parts of the country for allegedly hurting religious sentiments and under various other sections of Indian penal code (IPC)
“In the annals of judiciary, the unfortunate comments have no parallel and are an indelible scar on the justice system of the largest democracy. Urgent rectification steps are called for as these have potentially serious consequences on democratic values and security of the country,” the statement signed by 15 former judges, 77 ex-all India services officers and 25 veterans said.
On 26 May, former BJP spokesperson Nupur Sharma made certain comments against a religious group during a television debate. Following this multiple FIRs were filed against her in different parts of the country. She moved the apex court seeking direction to club all the FIRs together as one.
The Supreme Court rejected her plea but before that, she was severely reprimanded. She was held responsible for the unrest that the country faced following her comment and she was asked to apologise on television.
The reprimand was not part of a judgement or the official order. It could not have been. It was not a trial. It was not even a bail application where her alleged culpability was to be tried and tested.
It was a simple prayer for clubbing her multiple FIRs. And, the only observation that can be seen to have any relation with the plea was that she has a “clout” that prevents her from being arrested. The fact that the court thought that Sharma being a member of the ruling party can use her ‘clout’ to influence the Delhi police, can be seen as something having a direct relationship with her petition.
But beyond that none of the observations like she was “single-handedly responsible for setting fire across the country” could be directly linked to her plea.
A fair question that can be asked is on what basis the Bench felt that Sharma was responsible for what she was being accused of. By simplest guess, it could have been the media reports. But, can media reports be the basis for judging someone’s guilt and forming an opinion?
In 2019 during a hearing of public interest litigation (PIL) filed by activist Harsh Mander, the Bench led by then Chief Justice of India (CJI) Ranjan Gogoi gave a dressing down to Mander for filing an application seeking recusal of Justice Gogoi for his alleged biases. The bench admonished Mander for making his opinion based solely on news reports and social media posts.
The culpability or for that matter the innocence of Nupur Sharma is to be and will be decided by the court which will be preceded by an investigation and filing of a charge sheet and it is being debated whether observations made by the Supreme Court will have a bearing on it or not.
While the impact of the observations on Sharma’s case will become clear in times to come, as of now the comments made by the Bench have raised two important questions of law.
The first and most important question is what sanctity these oral observations have, and what effect they will have on a case. The second pertinent question is whether the court was fair in making these comments at a stage when the preliminary investigation is not even concluded.
The ‘oral’ regime
In 2015, while hearing a petition that sought quashing of an FIR registered against Patidar Anamat Andolan Samiti (PAAS) convener Hardik Patel, Justice JB Pardiwala of Gujarat High Court, now a Supreme Court judge made certain remarks that were to be later expunged from the final order.
Justice Pardiwala while quashing the FIR against Patel who was charged with treason held that an organised movement attended with violence while agitating for the inclusion of the Patidar/Patel Community in the list of the OBCs should not be viewed as an act of treason in the form of levying war.
The judgment was based on the merit of the case, delivered after analysing all fine points of law and constitutional principles.
However, in the same judgement, Justice Pardiwala made certain comments against the policy of reservation that in his own words was neither “relevant nor necessary for deciding the main matter”.
But his views expressed in terms of marking reservation as an “amoeboid monster sowing seeds of discord among the people” would have surely given anti-reservation voices a new weapon to push their arguments against affirmative action. After all, a sitting judge of the high court denouncing the reservation policy in such harsh terms was not a routine affair.
The comments made by Justice Pardiwala were part of the written judgement and had a legal sanctity attached to them, hence when the honourable judge felt that it was not relevant to the case, it was expunged.
But what happens to the oral observations made by the courts. The Supreme Court has time and again clarified that oral observations have no legal sanctity attached to them. But the fact remains that as they emanate from the bench of justice, there is enough probability that people mistake it as institutional opinion.
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During the onset of the second wave of COVID-19 last year, Madras High Court severely reprimanded the Election Commission for the alleged negligence of its duty. Though the reprimand was not part of the written order, the Election Commission very well knew that it was widely reported and caused irreparable harm to its image. It moved to the Supreme Court seeking direction to get it expunged, only to be told that “oral remarks are not a part of the official judicial record, and therefore, the question of expunging them does not arise”.
The apex court stated that a “formal opinion of a judicial institution is reflected through its judgements and orders, and not its oral observations during the hearing”.
However, it is also true that when a judge of a high court holds a constitutional body like the Election Commission responsible for the spread of an epidemic, it becomes difficult for a common man to filter it through the prism of written and oral. It can by all means be seen as a legal censure of the respondent.
Oral observations and their impact
It would be na?ve to assume that the oral observations made by the court bereft of legal sanctity, don’t have any legal repercussions. During the UPA 2 regime which was marred by a host of corruption cases and scams, the Supreme Court made scathing remarks against the government and its functioning. One such observation related to the controversial CBI affidavit in the Coalgate case caused irreparable harm to the reputation of the UPA government.
It brought the UPA government on the defensive and led many Congress leaders to seek guidelines for reporting oral observations and asked judges to show restraint in making these comments.
As reported by Business Standard, former Minister of Law and Justice Salman Khurshid in 2013 said, “As far as reporting guidelines on court proceedings are concerned, please try to help the court arrive at some rational and possible guidelines… The judges also have to have guidelines for themselves, because a lot of the things which are reported are said by them during trials.”
When the Bench of the Supreme Court reprimanded Nupur Sharma, it attracted severe criticism as many thought that observations by the apex court would lead to prejudicing Sharma’s case. It was argued that as the highest court of the land held her “single-handily responsible for what’s happening in India”, it would affect the case and minimise the chances of a fair trial.
Following the criticisms, one of the judges in the Nupur Sharma case recently said at a public event that “personal attacks on judges for their judgements lead to a dangerous scenario” and sought for the mandatory regulation of digital and social media.
He also talked about the people crossing the ‘Lakshman Rekha’ on social media platforms by launching “personalised, agenda-driven attacks” on the judges.
In no measure, any attempt to scuttle the independence of the judiciary or derail a judicial process can be justified. Independence of the judiciary is sacrosanct and it cannot be subjected to personal prejudices and political agendas.
But, does this mean that the courts and judges are beyond criticism even when they tend to affect the course of justice. Justice lies in fairness and the cardinal principle that keeps this fairness quotient intact is that everyone should be given a fair chance to present their case before the court.
Whether its Election Commission’s alleged complacency in enforcing Covid-19 protocol during the Assembly elections or the need and utility of reservation policy or for that matter guilt of Nupur Sharma, all of it can only be judged on the merit of the case. Conclusions in any of the above cases can be fairly drawn after considering evidence and witness and hearing the arguments of both sides. And the gravity of the crime can only be judged after balancing all the mitigating and aggravating circumstances.
Mahavir Tyagi, an important member of the Constituent Assembly, on 7 June 1949, while referring to the judges and the higher judiciary, had said: “Seats they occupy are the seats of gods and it has a great sanctity about it.”
Tyagi’s observations were dismissed by BR Ambedkar as mere “feelings” which were of lesser importance to the Constituent Assembly tasked with the job of framing India’s Constitution. However, for the common people, judges by all means hold a very high and esteemed position. And, by that virtue, their words hold great value.
In a judgement titled Salimbhai Hamidbhai Menon versus Niteshkumar Maganbhai Patel delivered in 2021, the Supreme Court held: Judges speak through their judgements 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.
While the observations were made in the context of oral directives, to a great extent it holds true for tough oral observations also. Comments made by the honourable court, whether as a directive or an observation during a case hearing, cease to fade from public memory easily.
It is important to remember that the apex court’s “caged parrot’ remark made against the Central Bureau of Investigation (CBI) in 2013 continues to haunt India’s premier investigative agency.
It is not to suggest that the court was wrong in its remark, it is just to reiterate a point that good, bad or ugly, right or wrong, the remarks made by the court get etched in the memory of the nation.
To use them with utmost discretion helps to keep the dignity of one of the most sanctimonious strands of the four pillars intact.
The author is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal.
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