Recently, the Election Commission of India (ECI) unsuccessfully approached the Supreme Court for issuing a direction to the Madras High Court for withdrawing its disparaging remarks against the ECI and gaging the media from reporting such matters which were not even part of the final order. An infuriated Chief Justice of the High Court had remarked that the ECI was “singularly responsible for COVID second wave” and that its officers “should probably be booked for murder”. It was widely reported in the media causing massive embarrassment for the ECI. Justice Chandrachud on the Supreme Court Bench observed that the discussions in the court are of public interest, and “[w]hat is happening, whether there is application of mind, how it fosters justice, is all of concern to the citizens.”. In other words, courtroom remarks by judges play a vital role in the judicial process.
In today’s age of internet when courtroom discussions reach us with ease, it is interesting to explore if oral remarks by the judges during court proceedings, which are not part of the written orders, hold any other jurisprudential significance? Let’s consider some of the remarks by Justice Sharad Arvind Bobde, just-retired Chief Justice of India (CJI), and try finding an explanation.
Towards the end of his tenure, Justice Bobde’s remarks created a furore while allowing interim protection to a government employee from arrest in a case involving repeated rape of a minor. He asked the lawyer of the accused, “Will you marry her?”. He further commented, “If you want to marry, we can help you. If not, you lose your job and go to jail.”. Women’s rights activists, eminent citizens, intellectuals, women politicians wrote to the CJI demanding an apology and even his resignation. Cornered, the CJI subsequently tried to clarify stating that the incident was misreported.
This was not the first time that Justice Bobde’s remarks raised eyebrows. Last year, during the lockdown due to COVID-19 pandemic, the Supreme Court under Justice Bobde nonchalantly dodged several petitions relating to the plight of the migrant labourers. While dismissing one such petition for payment of minimum wages to the migrant workers, Justice Bobde had questioned, “If they are being provided meals, why do they need money for meals?”. Severe public criticism of the Court’s role in the COVID crisis only compelled it to change its stance subsequently.
Again, in a bail petition of Kerala journalist Siddique Kappan, who was controversially arrested under anti-terror law(!) after he had gone to report on the Hathras rape and murder case, Justice Bobde advised his lawyer to approach the Allahabad High Court instead and remarked, “We are trying to discourage Article 32 petitions.”. Article 32 of the Constitution of India allows petitioners to move the Supreme Court for the enforcement of the Fundamental Rights guaranteed therein.
Acknowledged, but he took a U-turn when Arnab Goswami, the editor-in-chief of Republic TV, was in the dock! The Court issued contempt notice to the Assistant Secretary for sending a letter to Arnab Goswami allegedly intimidating him for approaching the court against the privilege notice issued by the Assembly. Justice Bodbe sternly commented: “No authority in the country can penalise somebody for coming to the court! What is Article 32 for! How dare this officer say all this! This is in the teeth of Article 32! 32 itself is a Fundamental Right!”
In rejecting the Rohingya refugees’ deportation case, he had apathetically stated, “Possibly that is the fear that if they go back to Myanmar, they will be slaughtered. But we cannot control all that”. That is unbecoming of the Chief Justice of the Court which has earned worldwide accolades over the years for championing the cause of human rights. (See my earlier blogpost here)
Many legal experts including Manu Sebastian in Livelaw and Gautam Bhatia in The Wire have made scathing analyses of Justice Bobde’s tenure as CJI, hence, I don’t have much to add but what makes me inquisitive is his prejudices and perspectives reflected through his oral remarks and their impact on the jurisprudence (legal philosophy) developed by the Court. Interestingly, that conforms to the theory of a school of jurisprudence – American Legal Realism.
According to this school, the law does not have any tooth until the courts decide something. The Realists regard legislation as mere source of law and it is the courts that put life into the dead letters of the statutes. They only become law when applied by a decision of a court. Therefore, according to this theory, the judges have a central role in ‘law making’. Needless to say, the prejudices of the judges, whether racial, religious or political, influence their wisdom and so the final outcome of cases. The judge’s social background, cultural and intellectual interests, personal relationships, political sympathies, religious views, and psychological make-up, even his frame of mind on the judgement day can be influential. These are known as “illusive factors of law” which are as important as written rules of law. These may well decide many crucial questions relating to life and liberty, be it free speech, abortion, euthanasia, religious freedom, sexual morality, women’s rights, rights of marginalized groups, so on and so forth. Emphasis on the significance of all these factors and a study of the extent to which they influence decisions, was termed as “behaviouralism”. The same factors continue to be a matter of great interest in the US Supreme Court history regarding appointment of liberal or conservative judges by the President.
Therefore, judicial remarks reflect the prejudices and perspectives of the judges and may even assist us in predicting the nature of their judgments. In the case of Justice Bobde, they reflect his inconsiderable respect for human rights. That probably partially explains the reason behind his reluctance to take up the issues relating to Article 370, Citizenship Amendment Act, new farm laws, etc. Hence, when we look back at his tenure, there is no significant judgement authored by him which has augmented human rights jurisprudence of the Supreme Court. Regrettably, it is this very Hon’ble Court where Justices like P.N. Bhagwati, Krishna Iyer, M. N. Venkatachaliah, J.S. Verma, adorned the high seat of justice and zealously protected people’s Fundamental Rights against any arbitrary onslaught of the State.
Although the courtroom remarks which reflect judicial prejudices and perspectives are not formally recorded in any law book or court proceedings, they eventually make their ways in the judgments, and thus, help in shaping the jurisprudence of the time.
Views expressed above are the author’s own.
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