If Oral Observations of Judges Have no Legal Sanctity, Why does the Media Turn it into News?

The media often reports on the oral observations of judges though it has no legal sanctity and makes it news which it is not, says NEERAJ MISHRA

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The "court observed" phrase has a very familiar ring for anyone following news media. Unfortunately what gets reported as "view of the Apex court" is often only banter and loud thinking by judges seized of the issues of the day. It has no legal sanctity.

Even after the Supreme Court laying down in 2007 that oral observations made by judges during the course of a hearing, have no legal sanctity, judges continue to make pronouncements and the media continues to lap it up. 

"It will become a national problem. Can farm laws be put on hold for the time being asks Chief Justice of India, S.A. Bobde".  It gets widely reported and makes it to the front pages of newspapers and websites.

The courts have often shown reluctance to act, hiding behind vocabulary and advise rather than law. Does the CJI not know that Act once passed by Parliament can not be "put on hold" just because he requests or suggests to the AG or do venerable reporters covering the proceedings have to be educated on how an Act of parliament is declared ultra vires or struck down. And, for all we know, it was just the CJI thinking aloud but when it gets reported as the headline or the view of the court then it assumes a different connotation. 

Oral observations or sermonising by judges can often be misinterpreted as institutional leaning. 

In a matter of public interest in Assam which activist Harsh Mandar brought to the Supreme Court the then CJI gave him a dressing down as it was on the basis of a "reported" view of the court. CJI Gogoi made it clear that oral observations tweeted or reported can not be the basis of a PIL and should not even be raised in the court. 

During the course of the hearing, Mander sought the recusal of CJI Gogoi from the three-judge bench "as he had already made up his mind" regarding the case. CJI Gogoi not only refused to recuse himself but in an indicative interaction between him and Mandar that lasted 40 minutes he made some interesting remarks that went like this:

The bench also sought to know from Mander as to how he was aware of the observations of the court since he was not present in the courtroom during previous hearings.

When Mander said he had read the news about the court proceedings in a legal news portal and a newspaper, the bench shot back, "You are taking it from social media. You are taking something from social media and throwing it to the CJI and allege bias?" 

The bench also berated Mander for arguing the case himself and appointed Prashant Bhushan Amicus Curie with a specific direction that he assist the court in determining the condition in the camps and not go into the issue of deportation.

On the issue of observations, Gogoi further said that judgments are the only thing of importance and no one should read too much into court observations.

When the Supreme Court says that "a humane approach should be evolved in dealing with Kashmiris", it literally has no meaning as far as the legality of it is concerned. Kashmir or any other political problem is to be resolved by the executive and the court can either strike down the steps taken or strike down the petition of opponents of the steps. 

Whatever its observations it has so far refrained from taking up the issue of abrogation of Article 370. In the best traditions of rule of law, judges are expected to speak as sparsely as possible in the courtroom.

A judge should speak through his judgment and not be given to sermonising is the general consensus amongst senior advocates. 

Under Article 141 of the Constitution, courts have the power to lay down law. This law emanates from a case and the ratio decidendi. (ratio decidendi is "the point in a case that determines the judgement" or "the principle that the case establishes".)

For two days prior to the fall of Kamal Nath government in Madhya Pradesh at the height of pandemic in mid-March, the Supreme Court made oral observations regarding the majesty of law and democracy but eventually decided on the basis of SR Bommai case which in its interpretation gives the Governor powers to call a floor test. 

In its judgment, the court failed to address the key question of resort politics and even allowed the vagrant Congress MLAs to hide in Bengaluru. 

Its judgment also differed with the most recent ones on defection or resignation of 17 Karnataka Congress MLAs and one Manipur MLA which also addressed the issue of resignation as a mode of bypassing the law of defection and its consequences.

In Arnab Goswami v. Government of Maharashtra, the two-judge SC bench made huge oral observations regarding freedom of expression and right to life etc and it came in for a lot of praise. 

However, activists allege that the same principles have not been applied evenly when it comes to all cases concerning freedom of press and expression.

If one were to go further back, the Supreme Court bench dealing with the 2G scam made so many negative oral observations that the outcome of the case and its political fallout were already apparent. And where do we stand today, the 2G case is dead, everyone from former minister A Raja to Kanimojhi to Reliance executives has been exonerated and the case is practically dead and dusted.

Clearly, the courts as well as the press need to go slow on making oral observations into the news of the day. 

Judges will have to give up the habit of making oral observations and the press will have to learn to ignore them as it may have no bearing on the eventual outcome of the case.

(Neeraj Mishra is a lawyer based in Raipur, Chhattisgarh, and is a freelance journalist. He worked with leading media houses before he turned into a full-time lawyer. The views are personal.)