Should Media report the oral observations made by the Court during hearing
which do not form a part of the written judgment? Legal connotation of oral
The observations of the vacation bench of the Apex Court in Nupur Sharma's
has led to commotion amongst all intellectuals. There has been
criticism of the observations by the Press, intelligentsia & retired military
personnel, retired administrative officials and retired judges of the High
Before going into the legal aspect of the matter it is apposite to bring out the
brief facts of the case. BJP leader & spokesperson Nupur Sharma made some
remarks against Prophet Mohammed, which led to criticism by Muslim clerics &
scholars and FIRs were filed at multiple cities against her. She approached the
Apex Court for directions that the trials be conducted at one place as is the
regular practice of the Apex Court.
The Bench made certain pungent observations against Nupur Sharma that her
unwanted remarks had created a furore in the society and resulted in communal
riots and also held her responsible for the Udaipur murder of a Hindu tailor.
These remarks were out of context and also unwanted/uncalled for. More so, the
oral remarks did not find place in the formal order passed by the Apex Court.
A number of questions arise from the instant controversy which require
deliberations which are enumerated as under:
- What purpose does the media serve in a courtroom?
- Freedom of speech and expression of the media
- The right to information of citizens
- The freedom of the media to report not just judgments but entire
- The accountability of the judiciary to the nation
- The authority of a judge to conduct judicial proceedings and to engage
in a dialogue during the course of a hearing
However, this is not the first time that such a matter has arisen but in
somewhat similar facts & circumstances, the Apex Court was seized of similar
matter in the case of The Chief Election Commissioner vs M.R. Vijayabhaskar in
Civil Appeal No. 1767 of 2021 decided on 6 May, 2021. The Madras High Court in a
writ under Article 226 of the Constitution heard & decided a plea for ensuring
that COVID-related protocols are followed in the polling booths during
The Court passed an order giving suitable directions for protection against
Covid-19 pandemic during the elections. However, the Court made certain pungent
remarks against the Chief Election Commissioner holding the officials of the
Election Commission liable for prosecution for failure to ensure adequate
protection against Covid.
It is pertinent that during the course of the hearing the High Court orally
observed that the EC is "the institution that is singularly responsible for the
second wave of COVID-19" and that the EC "should be put up for murder charges".
These remarks were not a part of the order of the High Court but were the oral
observations of the Court and were widely reported in the print, electronic/tele
As a consequence of the wide publicity of the said oral observations a complaint
was filed against Deputy Election Commissioner and other officials of the EC
under Sections 269, 270 and 304 read with Section 120-B of the IPC in Kolkata
but did not make a reference to the order dated 26 April 2021 of the Madras High
Court. The EC filed a miscellaneous application in the Madras High Court praying
for interim direction directing that only what forms part of the record in the
said W.P. No. 10441/2021 to be reported by the press and electronic media and
further directions to the media houses to issue necessary clarification in this
It was also prayed that the Court may issue directions that the police
authorities shall not register any FIR/complaint for offence of Murder on the
basis of the media reports of the oral observations made by the High Court.
However, the Madras High Court did not issue the desired directions which made
the EC approach the Apex Court for issuing requisite directions.
It was contended by EC before the Apex Court that the High Court ought not to
have made defamatory & derogatory oral observations holding EC solely
responsible for the second wave of COVID-19 & observing that EC officials be
prosecuted for murder charges as the said observations were extraneous, uncalled
for and without any basis. It was also pleaded that the observations of the High
Court during the oral hearings are not part of the written judicial record and
have no legal sanctity.
It was also pleaded the proceedings must not be sensationalized and necessary
directions and guidelines must be framed by the Apex Court on the manner of
reporting court proceedings. It was also contended that a balance must be
maintained in conduct of court proceedings. Further, it was argued that the oral
spontaneous reactions/ comments do not constitute a judgment.
The Apex Court dealt with the issue of restraining the media on reporting court
proceedings and also to restrict the media from reporting anything other than
the written judgment. The Court held that open court proceedings and the
fundamental right to the freedom of speech and expression are guaranteed by the
Constitution & the same could not be restricted or curtailed. The Court followed
Mohammed Shahabuddin vs State of Bihar
(2010) 4 SCC 653 and held thus:
"Courts must be open both in the physical and metaphorical sense. Save and
except for in-camera proceedings in an exceptional category of cases, such as
cases involving child sexual abuse or matrimonial proceedings bearing on matters
of marital privacy, our legal system is founded on the principle that open
access to courts is essential to safeguard valuable constitutional freedoms.
The concept of an open court requires that information relating to a court
proceeding must be available in the public domain. Citizens have a right to know
about what transpires in the course of judicial proceedings. The dialogue in a
court indicates the manner in which a judicial proceeding is structured.
Oral arguments are postulated on an open exchange of ideas. It is through such
an exchange that legal arguments are tested and analyzed. Arguments addressed
before the court, the response of opposing counsel and issues raised by the
court are matters on which citizens have a legitimate right to be informed.
An open court proceeding ensures that the judicial process is subject to public
scrutiny. Public scrutiny is crucial to maintaining transparency and
accountability. Transparency in the functioning of democratic institutions is
crucial to establish the public's faith in them."
The Court relied upon Swapnil Tripathi vs Supreme Court of India
10 SCC 639 which had stressed upon the importance of live streaming judicial
proceedings. The Court also held that Article 19(1)(a) of the Constitution
guarantees Freedom of Speech & Expression to every citizen which implicitly
guarantees Right to Freedom of the Press (vide Express Newspaper (P) Limited vs
Union of India1959 SCR 12 )
The paramount issue before the Apex Court related to Freedom and constraints of
judicial conduct. The main grievance of the EC centred round the oral remarks
made by the judges of the High Court during the course of hearing which received
widespread publicity in electronic and print media and the derogated the image
of EC & it's officials. It cannot be denied that the judges are free to conduct
court proceedings within the contours of the well-established principles of
natural justice. The Court elaborated the functioning of judiciary thus:
"36 The manner in which judicial proceedings are conducted, especially in our
superior courts, is unique to each judge and holds great weight in the
dispensation of justice. The issues raised or comments made by the Bench during
an oral hearing provide clarity not just to the judges who adjudicate upon the
matter, but also allow the lawyers to develop their arguments with a sense of
creativity founded on a spontaneity of thought.
Many a times, judges play the role of a devil's advocate with the counsel to
solicit responses which aid in a holistic understanding of the case and test the
strength of the arguments advanced before them. That is where the real art of
advocacy comes to play. The order or judgment of the court must indicate a
process of reflection and of the application of mind of the judge to the
submissions of opposing parties.
37 The diversity of judicial backgrounds brings polyvocality in judgments and
has enriched our jurisprudence for over seven decades since Independence. The
humanity intrinsic to each judge allows them to transcend the language of the
law to do complete justice. In the pursuit of doing justice and in the course of
an open deliberation in court, propositions may be put forth and observations
are made in order to facilitate the process of arriving at an acceptable outcome
based on the law but which is in accord with justice.
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
This exchange of views, perspectives and formulations is but a part of evolving
towards a solution which accords with justice according to law. An exchange of
views from the Bench is intrinsic to a process of open and transparent judging.
The revealing of a judges' mind enables opposing parties to persuade her to
their points of view. If this expression were to be discouraged the process of
judging would be closed."
The Court specifically dealt with defamatory & derogatory remarks passed
during judicial proceedings & observed thus:
"Even so, a duty is cast upon the judicial officer not to deflect himself from
the even course of justice by making disparaging and undeserving remarks on
persons that appear before him as witnesses or otherwise. Moderation in
expression lends dignity to his office and imparts greater respect for
But occasions do arise when a particular Judge, without any justification, may
cast aspersions on a witness or any other person not before him affecting the
character of such witness or person. Such remarks may affect the reputation or
even the career of such person. In my experience I find such cases are very
But if it happens, I agree with the Full Bench of the Bombay High Court that the
appellate court in a suitable case may judicially correct the observations of
the lower court by pointing out that the observations made by that court were
not justified or were without any foundation or were wholly wrong or improper.
38 The duty to preserve the independence of the judiciary and to allow freedom
of expression of the judges in court is one end of the spectrum. The other end
of the spectrum, which is equally important, is that the power of judges must
not be unbridled and judicial restraint must be exercised, before using strong
and scathing language to criticize any individual or institution. In A.M
Mathur vs Pramod Kumar Gupta
(1990) 2 SCC 533, a two Judge bench of this
Court, speaking through Justice K Jagannatha Shetty held:
13. Judicial restraint and discipline are as necessary to the orderly
administration of justice as they are to the effectiveness of the army. The duty
of restraint, this humility of function should be a constant theme of our
judges. This quality in decision making is as much necessary for judges to
command respect as to protect the independence of the judiciary. Judicial
restraint in this regard might better be called judicial respect, that is,
respect by the judiciary.
Respect to those who come before the court as well to other co-ordinate branches
of the State, the executive and the legislature. There must be mutual respect.
When these qualities fail or when litigants and public believe that the judge
has failed in these qualities, it will be neither good for the judge nor for the
14. The Judge's Bench is a seat of power. Not only do judges have power to make
binding decisions, their decisions legitimate the use of power by other
officials. The judges have the absolute and unchallengeable control of the court
domain. But they cannot misuse their authority by intemperate comments,
undignified banter or scathing criticism of counsel, parties or witnesses.
We concede that the court has the inherent power to act freely upon its own
conviction on any matter coming before it for adjudication, but it is a general
principle of the highest importance to the proper administration of justice that
derogatory remarks ought not to be made against persons or authorities whose
conduct comes into consideration unless it is absolutely necessary for the
decision of the case to animadvert on their conduct." (emphasis supplied)
The Apex Court observed that although independence of judiciary is supreme but
judicial proprietary has to be maintained & held thus:
"This court must also intervene where judges have overstepped the mark and
breached the norms of judicial propriety."
The Court dealt with the harsh oral observations and the legal inferences that
can be drawn from such oral observations, which do not form a part of the
judgment. The Court remarked thus:
"........regarding the remarks made by the judges of the Madras High Court, we
find that the High Court was faced with a situation of rising cases of COVID-19
and, as a constitutional Court, was entrusted with protecting the life and
liberty of citizens. The remarks of the High Court were harsh. The metaphor
inappropriate. 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.
42. Having said that, we must emphasize the need for judges to exercise caution
in off-the-cuff remarks in open court, which may be susceptible to
misinterpretation. Language, both on the Bench and in judgments, must comport
with judicial propriety. Language is an important instrument of a judicial
process which is sensitive to constitutional values. Judicial language is a
window to a conscience sensitive to constitutional ethos. Bereft of its
understated balance, language risks losing its symbolism as a protector of human
The power of judicial review is entrusted to the High Courts under the
Constitution. So high is its pedestal that it constitutes a part of the basic
features of the Constitution. Yet responsibility bears a direct co-relationship
with the nature and dimensions of the entrustment of power. A degree of caution
and circumspection by the High Court would have allayed a grievance of the
nature that has been urged in the present case.
All that needs to be clarified is that the oral observations during the course
of the hearing have passed with the moment and do not constitute a part of the
record. The EC has a track record of being an independent constitutional body
which shoulders a significant burden in ensuring the sanctity of electoral
democracy. We hope the matter can rest with a sense of balance which we have
attempted to bring.
43.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
judgments 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."
Now coming back to Nupur Sharma's case, it is required to apply the dictum of
the aforesaid case in Chief Election Commissioner (supra). As had been decided
therein, media can legally report not only the judgment but the entire Courtroom
proceedings and therefore they cannot be restrained from reporting the oral
observations made by the Court. As far as the interaction between the Court and
the advocates is concerned, it is necessary for arriving at the right
conclusion. The Judges cannot be expected to be a silent spectator to the
proceedings and are required to participate in the proceedings, as and when
required, to express their views on the arguments so as to reach to a right,
reasonable & justifiable outcome.
The Court in the aforesaid CEC case held that any harsh & uncalled for
observations ought to be expunged by the Higher Court in Appeal. However, in
Nupur Sharma's case the oral observations came from the Bench wherein she had
approached the Apex Court for interim relief. Since, the oral observations did
not find place in the written judgment, no Review or Curative Petition can lie
against the said oral observations.
Appeal does not lie against the said arbitrary oral observations as they were
not a part of the formal judgment and the Petitioner appears to be remedy-less.
But it is well settled that arbitrariness violates Article 14 of the
Constitution vide Maneka Gandhi vs. Union of India
AIR 1978 SC 597.
Hence, Nupur Sharma can file a Writ Petition before the Apex Court under Article
32 of the Constitution for expunging these derogatory remarks.
Much harm/prejudice has been done by these oral observations both socially &
legally as her matters are pending in the lower Courts. In this background, with
due respect to the Highest judicial authority, judicial proprietary requires the
'Supreme' Judges to exercise restraint and to avoid harsh, derogatory & uncalled
for oral observations which may harm the case & repute of the
Written By: Inder Chand Jain
Email: [email protected]
, Ph no: 8279945021