Social media has given cause for many an Indian judge to be upset and the most recent was Justice DY Chandrachud when he lamented that people fail to distinguish between what a judge says in open court and what they say in their judgement. He went on to add, this was just part of the back and forth with a lawyer during the course of arguments and a dialogue of sorts.
While the specific cause for that observation made in court couldn't be contextualised, there is some truth to Justice Chandrachud’s complaint. The coverage of courts in popular portals has changed beyond recognition over the last year. Proceedings in important cases are not only live tweeted but also live streamed by the courts themselves.
The functioning of such institutions are under much more scrutiny than before and in the tide of content, it is possible that what a 'judge' said during a hearing gets unintentionally converted into what the court said in its judgement.
Oral Observations Misconstrued As Court Judgement
It’s not just social media but even mainstream media which is guilty of this well-written and accurate copies by the court reporter-given context and nuance to the observations made by a judge during a hearing gets morphed into an irrelevant quote by the headline writer who is, at the end of the day, optimising for eyeballs. On some occasions, it can reflect poorly on the court's part even when it’s not an outright misrepresentation of what the court said.
It would, however, be a terrible day for justice if the judges stayed silent during arguments by lawyers, fearing misrepresentation of their remarks in the media.
The judiciary’s greatest source of strength over other limbs of the government is its relative transparency - it is possible to see what is being argued in court, how the judge reacted, how they changed their minds or why they were unconvinced by the arguments of the lawyers.
As a lawyer, a vocal judge who asks questions and makes observations if thinks your arguments are wrong, is vastly preferable to an inscrutably silent judge who says nothing until they deliver a judgement. One hopes that judges continue to be vocal on the bench and give vent to their thoughts during arguments.
SC Bench on Hijbab, Bonded Labour Court Controversy
That being said, there needs to be adequate addressal of judicial decorum on the bench and this is where one of Justice Chandrachud’s colleagues, Justice Hemant Gupta has been found severely wanting.
Justice Gupta, along with Justice Sudhanshu Dhulia comprising the Supreme Court bench has been hearing arguments in the appeal filed against the Karnataka High Court judgement upholding the Karnataka Government's ban on hijabs in schools in the state.
Even as the the lawyers for the petitioners are making their arguments, Justice Gupta has been hitting the headlines for his uncharitable and controversial remarks. Coupled with his recent dismissal of a Public Interest Litigation(PIL) in the context of bonded labour, his comments on the bench have been making the headlines for all the wrong reasons.
Backhanded Remarks Breach Legal Decorum
The remarks are disturbing for many reasons. For one, they seem off hand and callous, and not a serious attempt at probing the legal or factual arguments of counsel. One could have understood if Justice Gupta had pointed to the differences in the practices of Islam and Sikhism in the course of the arguments, but to make blanket statements that Sikhism is “well-engrained in the culture of the country,” and therefore, implying that Islam is still “foreign” and somehow against “Indian culture” hints of deep prejudice.
Being satisfied with the government’s actions to tackle bonded labour is one thing but dismissing the collective ordeal of bonded labour as a “racket” smacks of callousness and cruelty of the highest order.
It is no one’s case that judges don't come with pre-conceived notions for. They are after all, human. What is supposed to set the judges apart is an essential qualification for the job, the ability to absolve these biases and hear and then decide a case.
This is not a mere theoretical requirement. In recent example, we saw Justice N Anand Venkatesh of the Madras High Court who acknowledged his own pre-conceived notions regarding homosexuality and how he overcame the same when it came to a case before him.
We also see this in the Supreme Court judgement relating to the sexual harassment of a woman district judge where the judges admit that they, as men, did not think the acts complained of were problematic until they were compelled to examine it from the point of view of the woman in question.
Whatever one’s pre-conceived notions of a matter, being willing to hear a case and engaging in spirited debate with counsels is part and parcel of a judge’s job.
Such comments also fundamentally affect the perception of the fairness of the judiciary itself. Even when people understand that an oral observation is not a judgement, the judgement will be seen in light of the oral observations during the arguments. A judge who was seen to be rigidly sticking to their biases during the hearing will not inspire confidence in the neutrality of the judiciary.
Whatever the outcome of the case, almost everyone who comes to court wants to go away with the feeling that they have been given a proper hearing by an impartial judge. Callous and ill-informed comments casually dropped from the bench damage that.As the Bangalore Principles of Judicial Conduct stress:
“A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.”
(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)