11/16/22, 9:28 AM LawBeat | Orality in courts: Constitutional ethos or political correctness ?

Orality In Courts: Constitutional ALSO READ

Ethos Or Political Correctness ?

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"It is very necessary that there should be a gripping
entertainment - this is a kind of social catharsis, which our dull
life demands and must have if it is not to seek relief in war," Sir Tennis Player Leander
Jack Jacob, a British exponent of civil court procedure had Paes Files Appeal
remarked on usage of Orality in courts.  Against Order Directi…

Raj Bhojani   
In the Indian context, Jacob's thoughts continue to remain
16 Hours Ago
relevant, not because Sir Jacob QC had anything to do with the
civil procedures of courts in India because it is from the British 

that India culminated its Code of Civil Procedure 1908.

In recent times, there have been several oral observations from Delhi High Court
the Indian Courts which became national news. Some significant Dismisses Uddhav
and recent ones have come from proceedings in Supreme Court Thackeray's Plea…

in the Hijab case and the Nupur Sharma case. One that Gautam Mishra   
attracted massive attention was the infamous "murderer" 16 Hours Ago

pejorative used for Election Commission of India (ECI's) by


Madras High Court. 

Union Law Minister Kiren Rijiju recently pointed out that judges
should refrain from making oral observations and instead, focus
on speaking through written orders. The law minister suggested

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11/16/22, 9:28 AM LawBeat | Orality in courts: Constitutional ethos or political correctness ?

introducing an "in-house" mechanism to regulate oral

observations by judges. 

On the other hand, in May 2021, Justice DY Chandrachud, the

expected Chief Justice of India in line, had observed in ECI's
special leave petition against the oral observations of Madras
High Court that exchanges between the bar and the bench
fostered justice. In the judgment, Justice Chandrachud said, "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". While elaborating on key aspects of public
disclosure and judicial accountability, the bench, also
comprising Justice MR Shah relied on Attorney General v.
Leveller Magazine, a judgment from the courts of England and
Wales. This interpretation of the English judgment by the
Supreme Court of India came from the purview of justice
dispensation and transparency, the reliance on which is out of
place, especially since the subject matter of both cases were
dissimilar, if not diametrically opposite.

Interestingly, in its suo motu case concerning covid19

management, the Supreme Court in April 2021 had said that
judges must practice restraint while making off the cuff remarks
that damage a person’s reputation and castigates officers. 

Fast forward to July 1, 2022. The top court refused to entertain

a plea filed by former BJP leader Nupur Sharma after a barrage
of FIRs were filed against her in various parts of the country for
the comments she made on a religious figure in Islam - Prophet
Muhammed at a television debate. While doing so, the Court
had orally remarked that she was "single-handedly responsible"
for the events that unfolded afterwards. Several protests had
erupted across India after her statement and various
international leaders and consortiums condemned it. Top Court
said, "She should apologise to the whole country for what she
has done. We saw the statement made by her on TV.” However,
this statement never formed part of the order dismissing her
plea. Significantly, a month later, the same bench (of Justices
Surya Kant and JB Pardiwala) allowed her prayer for transferring
all FIRs to Delhi.

Justice DY Chandrachud had noted in a judgment, “Oral

observations in court are in the course of judicial discourse. The
text of a written order is what is binding and enforceable.
Issuing oral directions (presumably to the public prosecutor)
restraining arrest, does not form a part of the judicial record and
must be eschewed.”

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11/16/22, 9:28 AM LawBeat | Orality in courts: Constitutional ethos or political correctness ?

Despite this view, the ongoing trend of making sweeping oral

statements continued. This is not the first instance when the
Supreme Court has taken varying stands on similar issues. While
the bench of Justice Surya Kant & JB Pardiwala orally termed
the TV debate in the Nupur Sharma case as one “fanning
agenda” and criticised the media for discussing an issue which
was still “sub-judice” (Gyanvapi case), Justice Chandrachud
position on public debates was that they were “beautiful”, when
Madras HC passed critical remarks against ECI. The position of
the bench on discussions and media coverage of issues was at
the time, one which “emboldened constitutional ethos”. This
marked deflection of the Supreme Court on the Gyanvapi issue
could thus be deemed political correctness?

Markedly, the legal issue which is predominantly ignored is

whether oral observations of the court can be said to be a part
of the judgment. Technically, section 2(9) of the Code of Civil
Procedure defines ‘judgment’ and it is defined as “the statement
given by the Judge on the grounds of a decree or order”.  In
view of the above, it may be concluded that the opinion of the
judges can only be reflected by way of the court's judgments
and not oral observations of the judges.

Another important aspect that the Supreme Court in the ECI

case was the manner in which judicial proceedings are
conducted, especially in superior courts. It was observed that
this 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.

The Supreme Court also referred to its 1978 judgment in the

case Mohinder Singh Gill Vs. Chief Election Commissioner,
wherein it had cautioned the judges from making comments in
the open court stating 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.

Concluding from the observations mentioned above and the

way in which the media picks up Court’s oral observations, the
simple answer may be that the bench should keep in mind that
Judicial language is window to a conscience, sensitive to the
constitutional ethos which makes a huge impact on our society
and sometimes leaves a permanent mark. The observations
made during the hearing in the case of Nupur Sharma was a
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11/16/22, 9:28 AM LawBeat | Orality in courts: Constitutional ethos or political correctness ?

marked example of this and faced immense backlash. Retired

judge of Delhi High Court, Justice Dhingra called this an
irresponsible act.

Additionally, the media should also practice the concept of the

principle of limitation, and carry a responsibility to evaluate the
impact of the reporting and the way in which it’ll be perceived
by society at large.

The judiciary, which serves as “sentinel on the qui vive”, should

carry out its duties exclusively through impartial judgments and
not through meaningless preaching. This rule derives itself, both
from the fundamentals of the constitutional faith placed in
judges as well as from long-standing rules of judicial decorum.

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