Why honourable courts should exercise ‘utmost discretion’ while making oral observations

Former BJP spokesperson Nupur Sharma made certain comments during a news debate for which she was booked under various sections of the Indian Penal Code (IPC) for allegedly hurting religious feelings and promoting enmity among different groups. From Assam to West Bengal, and Karnataka to Maharashtra, multiple FIRs were filed against her. Following this, she moved the Supreme Court with a simple prayer for clubbing all the FIRs together and transferring it to the Delhi police for investigation. If for once we set aside the argument that multiple investigations and trials will cause unnecessary harassment to the petitioner, what cannot be ignored is that multiplicity of legal proceedings would only waste the time and resources of the judiciary which is already overburdened by huge pendency. In such a scenario clubbing all the FIRs would have been a prudent move. However, the apex court rejected the plea and allowed Sharma to withdraw her plea. But before that, it made numerous observations that were enough to mark her guilty in the eyes of common people, without a trial. The honourable bench of the Supreme Court observed that Sharma was “single-handedly responsible for what’s happening in the country”; this by simplest interpretation would also include the recent beheading of a man in Udaipur, Rajasthan, by two Islamist fanatics. While this “oral observation” was not included in the final order, it was widely reported in newspapers, debated on television, and widely shared on various social media platforms. Irrespective of the fact that it was not part of the final order, it is bound to affect the opinion of the common man and the judgement of the trial court. Sharma has been pronounced guilty, not through a judicial order but at least by the observations of the justices. Commenting upon the entire case and the observations made by the bench, noted Supreme Court Advocate and author J Sai Deepak said, “The observations made by a bench of the Hon’ble Supreme Court on Friday in the context of a very limited, reasonable, legal and legitimate relief sought by Nupur Sharma are extremely unfortunate and depressing to say the least for those who believe in free speech and judicial temperance. While I understand that there are constitutionally drawn restrictions on free speech, whether Nupur Sharma’s statement did indeed cross the red line is for the trial court to determine after trial, and not for the Supreme Court to air its views at this stage. The insistence on an apology indicates a pre-conceived approach to the matter which does not bode well for the public’s confidence in the judiciary and its impartiality. Even if the observations were not ultimately captured in the order of withdrawal of the petition, the institution must realise that even its observations are widely reported and impact the formation of opinions.” He added, “On the one hand the Bench came down heavily on TV debates for discussing a ‘sub-judice matter’ and on the other hand, it made observations which are bound to impact the trial unless caveated or retracted. Also, I hope the law on sub-judice matters is not going to be stretched to stifle public debates on such issues of public and national interest. Finally, to blame Nupur Sharma for acts of terror committed by jihadi elements amounts to victim-shaming and victim-blaming, and has the effect of providing a justification for all the death and rape threats Nupur Sharma has received. In the process, we have come across as a third-world banana Republic where no arm of the State has the will or the gumption to rein in jihadi elements who are holding the country to ransom. I sincerely hope and believe that we can do better as a democracy which is governed by rule of law and as a civilisation that has stood for truth and dharma. After all, the Supreme Court’s motto is Yatho Dharmastatho Jayah.” Before anything, the judiciary is expected to be the protector and defender of individual rights. One of the cardinal principles of common law is the presumption of innocence. The Indian judiciary in its more than seven decades of existence has always risen to the occasion to defend the right of an individual to be considered innocent until proven guilty. From terrorists to those accused of the most heinous crimes, all were given a fair trial and chance to prove their innocence. Given this illustrious legacy of our honourable courts, the haste to mark someone guilty, that too without considering a single piece of evidence, only disappoints those who repose their unwavering faith in the fairness of the judicial process. 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 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”. 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. Supreme Court lawyer Ashish Goel opined that the honourable Supreme Court has no business assuming to itself the role of a trial court and pre-deciding whether Nupur Sharma is guilty or not. “Whether or not Nupur Sharma’s comments made on TV constitute a penal offence as defined under the IPC, or whether they constitute constitutionally protected speech, is something for the jurisdictional court to decide after perusing facts and evidence produced before it. The issue before the court was straightforward: Whether multiple FIRs in multiple states on the same issue should be clubbed or not. There cannot be two opinions on this. This is a basic procedural safeguard and both law and prudence demand it. Even considering that the court was not inclined to grant the relief, there was no occasion for the court to pre-judge the guilt of the petitioner without perusing the relevant materials. The court’s comments will undoubtedly have a bearing (directly or indirectly) on the merits of the case regardless of the fact that the remarks do not find space in the order. Judges must understand that we live in the age of social media and court proceedings are reported live and whatever judges say will inevitably influence public opinion and may prejudice trial. There is no guideline in place but judges must exercise some degree of caution and self-restraint and refrain from making off the cuff remarks from such towering heights when it is wholly unnecessary,” said Ashish Goel 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. President Ram Nath Kovind speaking at the valedictory function of the Constitution Day celebration last year 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.” One can only hope that our esteemed courts continue to exercise this “utmost discretion” as their words have more power to influence the course of justice than anyone else’s. 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. Read all the Latest News , Trending News ,  Cricket News , Bollywood News , India News and Entertainment News here. Follow us on Facebook, Twitter and Instagram.