The consequential afterlife of judiciary’s oral observations

judiciary’s oral observations

Supreme Court judge Justice B.R. Gavai on February 12, while hearing a public interest litigation (PIL) seeking shelter for the urban homeless in Delhi, delved into the issue of “untrammelled freebies” given by the government.

As reported by Live Law Justice Gavai said, “I am sorry to say, but the affidavit (respondent's) says this much facilities will be provided to them (homeless persons).. rather than permitting them to be a part of the mainstream society by contributing to the development of the nation, are we not creating a class of parasites?”

While Justice Gavai's remarks were ‘oral observations’, not a part of any order or judgment, nonetheless, they will continue to be a reference point in any debate over freebies.

Oral observations made by the judges are usually not included in the orders or judgments but they are widely reported in newspapers, debated on television, and widely shared on various social media platforms.

A case of remarks being expunged in the order

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. He 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 amongst 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.

Oral observations have no legal sanctity

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 the institutional opinion.

In April 2021, when the second wave of COVID-19 had hit hard and Assembly elections were held in the five states, a petition was filed in the Madras High Court seeking direction for the strict implementation of the COVID-19 protocol. During the hearing of the petition, a division bench consisting of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy of Madras High Court came down heavily on the Election Commission for failing to ensure adherence to COVID-19 protocol by political parties during the campaign and the court held the commission responsible for rising cases.

The bench observed that the Election Commission was “singularly responsible for the second wave of Covid-19 and its officers should be booked on murder charges probably”.

The remarks were widely reported and discussed. There cannot be a second thought that remarks made by the bench showed one of the most respected constitutional bodies of the country in a bad light. Following this the Election Commission moved the Supreme Court, seeking directions to bar the media from reporting the oral remarks as it “tarnished the image of an independent constitutional authority”.

The apex court, while acknowledging that remarks of the Madras High Court were “harsh” and the “metaphor inappropriate”, said: “The High Court — if indeed it did make the oral observations which have been alluded to — did not seek to attribute culpability for the Covid-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of Covid-19 related protocols during elections.”

The apex court in its order stated, “These oral remarks are not a part of the official judicial record, and therefore, the question of expunging them does not arise. It is trite to say that a formal opinion of a judicial institution is reflected through its judgements and orders, and not its oral observations during the hearing. Hence, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings.”

The apex court added that the “oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record”.

Record of public opinion

However, it is important to understand that beyond the ‘record’ of the court, there is a record of public opinion that is not selectively shaped after acknowledging the fact that observations made by the judges became part of the order or not. For a common person, the words of a judge of the High Court and the Supreme Court, whether written or oral, are held in high regard and it is bound to leave an indelible impression on them.

Remarks once made, whether expunged later from records or withdrawn cannot be automatically erased from public memory, they stay for long to shape our views and opinions. And, when it is made from “towering heights” they are bound to stay longer and affect widely.

It would be naïve 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, 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 put 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."

Judicial accountability is lost when it comes to oral orders

In a judgment titled Salimbhai Hamidbhai Menon versus Niteshkumar Maganbhai Patel delivered in 2021, the Supreme Court held that 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.

Former President of India Ram Nath Kovind speaking at the valedictory function of the Constitution Day celebration in 2021 called upon judges to “exercise the utmost discretion in their utterances in the courtrooms”. President Kovind while quoting Justice Frankfurter of the US Supreme Court said, “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic and social pressure.”