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 observations

The observations of the vacation bench of the Apex Court in Nupur Sharma's case 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 Courts.

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:

1. What purpose does the media serve in a courtroom?
2. Freedom of speech and expression of the media
3. The right to information of citizens
4. The freedom of the media to report not just judgments but entire judicial proceedings
5. The accountability of the judiciary to the nation
6. 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 elections.

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 media.

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 regard.

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 (2018) 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 outcome.

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 judiciary.

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 rare.

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 judicial process.

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 dignity.

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 petitioner/respondent.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021