Oral remarks by Judges: What’s their purpose?

Transcript: 

Hello everyone and welcome to SCO’s channel. I’m Advay Vora. Our question today is pretty straightforward. How seriously should we take the comments passed by judges in a courtroom? A courtroom is like any other place where judges pass casual remarks or observations that don’t always make it to the final order of the Court. But because we are in the age of live tweeting and live streaming, often these statements get extracted and become the news of the day. Could this kind of reporting create a chilling effect on the proceedings in the court or is this the kind of scrutiny that is required in the courtroom? Let’s dive in.

The latest such observation to dominate the news cycle was uttered by Justice Dipankar Datta in the course of a hearing where Rahul Gandhi, Leader of the Opposition in the Lok Sabha, had challenged a summons to him by a Lucknow court in a criminal defamation case. How do you know that 2000 square kilometers was acquired by China? What is the credible material? A true Indian would not say this. When there is a conflict at the border, can you say such things? Why can’t you ask these questions in Parliament? This remark was addressed to Abhishek Manu Singhvi, Gandhi’s counsel. Expectedly, the Order dictated at the end of the proceedings contained neither the true Indian remark nor the rhetorical questions. In fact, the Bench accepted Singhvi’s contention that the Lucknow Magistrate could not take cognizance of an offence without hearing Gandhi.

Political leaders and commentators were quick to excoriate Justice Datta for overstepping. The INDIA bloc called the remarks extraordinary and unwarranted.” Senior Advocate Raju Ramchandran equated the comments with the Bombay High Court’s recent questioning of the patriotism of those seeking to protest at Azad Maidan in support of Gaza. An unsigned humor column in The Economic Times quipped that there has been a strange gear shift in the judiciary which has gone from interpreting laws to delivering unsolicited TED talks on patriotism. Justice Datta joins a list of judges whose oral remarks have drawn attention in recent times. In February, Chief Justice B.R. Gavai, while hearing a PIL on urban housing for the poor, asked whether freebies create a class of parasites.

The context made it clear that the CJI was batting for the integration of the homeless into the mainstream but the choice of the word parasite was unfortunate. The Supreme Court had taken note of casual remarks in The Chief Election Commissioner of India v M.R. Vijayabhaskar. Justice Sanjib Banerjee, then Chief Justice of the Madras High Court, had blamed the Election Commission for failing to enforce health protocols during the polls and, in a moment of exasperation, had suggested murder charges against it for the surge in Covid related deaths. These remarks were not in the final order, but they live on the Internet forever. In its judgment, authored by Justice D.Y. Chandrachud, the Court had clarified that it is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, not its oral observations during the hearing.

The verdict also touched upon the function of oral comments, they provide clarity to the judges and allow lawyers to develop arguments with a sense of creativity founded on a spontaneity of thought. The Court suggested that judges often play the role of devil’s advocate to test the strength of counsel’s arguments. This revealing of a judge’s mind enabled parties to persuade them to their point of view. If this expression were to be discouraged, the process of judging would be closed, the Court warned. In the same breath, however, the Court asks judges to exercise restraint before using strong or scathing language to criticise a person or an institution.

While it called out the remarks of the High Court as harsh and the murder metaphor as inappropriate, it rejected the ECI’s request to restrain the media from reporting the comments. The principle of judicial propriety, which the judgment in Vijayabhaskar stressed, may encourage the Court to hold a mirror to itself in the wake of Justice Datta’s remarks. But contextualising, rather than self censorship may be a more appropriate response to the criticism that has followed. With their tone and choice of words, judges must make it clear whether they are clarifying arguments, sharing an off-the-cuff opinion or simply indulging in banter.

This is a video summary of a weekend newsletter by our Senior Associate Editor V Venkatesan.

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