Nupur Sharma and the question of oral observations in court

On July 1, the Supreme Court’s two-judge bench castigated suspended BJP leader Nupur Sharma for her malevolent remarks on Prophet Muhammad on a TV show

Judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses,” a two-judge bench of the Supreme Court said in the case of ‘A M Mathur Vs Pramod Kumar Gupta’ (1990).

On July 1, the Supreme Court’s two-judge bench castigated suspended BJP leader Nupur Sharma for her malevolent remarks on Prophet Mohammad on a TV show. It held that she was single-handedly responsible for causing trouble in the country.

Also Read: The rise and fall of Nupur Sharma

Justices Surya Kant and J B Pardiwala were hearing Sharma’s petition for the consolidation of multiple FIRs, lodged at various places across the country, into a single case in Delhi.

The bench not only declined to consider her plea but went on to observe that her outburst in the TV debate was responsible for the violence in the country, including the killing of a tailor, Kanhaiya Lal, on June 29 in Udaipur. The judges even asked her to tender a public apology.

The development triggered a massive storm on social media with hundreds of handles on Twitter launching a vitriolic attack on the two judges. Some even dug out past details of their lives. A few days later, at a symposium, Justice Pardiwala called for the regulation of social media.

“Trials by digital media are undue interference for the judiciary. This crosses the ‘Laxman Rekha’, and is all the more problematic when only half-truth is pursued,” he said.

Justice Pardiwala expressed apprehension that personal attacks on judges for their judgements could lead to a dangerous situation where the judges have to think about what social media thinks instead of what the law really thinks.

The barrage of angry comments about SC judges, particularly from BJP supporters, was in reaction to the observations made orally in the hearing of the case.

Found to be scathing and overboard, the oral observations are not part of the order and do not mean much legally. The strong words had the potential to prejudice her case, if not in her legal pursuit then certainly in the collective public memory. Oral observations are an integral part of the judicial process.

The question, however, is whether judges who make personal comments should be immune to public criticism.

Also Read: Nupur Sharma case and the trouble with TV debates

Former SC judge, Justice V Gopala Gowda saw nothing objectionable in the court’s remarks during the hearing. “Judges are also human beings. The spokesperson of a political party must behave in a responsible manner. Everybody is answerable and accountable. We all have to respect and honour the sentiments of the people,” he said.

It is not the first time that a Supreme Court judge has spoken about regulating social media. At a symposium in 2021, Chief Justice of India N V Ramana stressed that it was imperative to start a discourse on how social media trends could affect institutions. He also said that judges and the judiciary were not completely dissociated with what goes on beyond courtrooms.

“New media tools, with their enormous amplifying ability, are incapable of distinguishing between right and wrong, good and bad, and the real and fake,” he had said.

On Constitution Day, last year, Justice Ramana expressed the need to protect the judiciary from motivated and targeted social media attacks.

He asked the law enforcement agencies to deal with them, in order to create a secure environment to let judicial officers work effectively.

Delhi University’s Professor Tanvir Aeijaz said the issue is complex. “One needs to have a balance and behave responsibly on social media. A call for violence or genocide in a society governed by the rule of law is totally unacceptable. Social media is a part of society. It is important to apply the laws in an equitable and just manner here too,” he said.

Social media, which has no censorship, plays a crucial role in enabling free speech and giving a voice to the voiceless. In a democratic setup, citizens find it easy to share their views on any subject through digital platforms.

At the same time, the social media landscape has pitfalls of its own. Social media platforms are known to provoke people to react rather than think. The volume and speed of reactions enable people to act on unfounded and uninformed opinions. Their reactions to judicial developments, too, are more often than not ad hominem attacks and untempered reactions that are reminiscent of mob justice.

A bona fide critique of judges, by exercising the freedom of speech and expression in a fair manner, is expected to serve the larger public interest. Notably, as part of the classical scheme of checks and balances, the power of criminal contempt is available against malicious criticism of a judge even in purely administrative or non-adjudicatory matters.

Also Read: Why SC is furious with Nupur Sharma

Caution and circumspection

On May 6, 2021, the Supreme Court advised judges to observe caution and circumspection in their observations, in the ‘Chief Election Commissioner of India Vs M R Vijaybhaskar and Others’ case.

“We must emphasise the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation,” Justice D Y Chandrachud had then written on behalf of the bench.

The top court had also emphasised that language, both on the bench and in judgements, must comport with judicial propriety.

“Language is an important instrument of a judicial process which is sensitive to Constitutional values. Judicial language is a window to a conscience sensitive to Constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity,” it said.

In this case, the Election Commission was aggrieved by the Madras High Court’s observations that, “the institution is singularly responsible for the second wave of Covid-19” and that the Constitutional body “should be put up for murder charges.”

These remarks, though not part of the order of the High court, were reported widely in the print, electronic and television media, causing heartburn to the constitutional body.

The poll panel asked the court to expunge the remarks and restrain media from reporting oral observations or court proceedings.

The court rejected the plea, even though it found the remarks of the High Court were harsh and inappropriate. The oral remarks are not a part of the official judicial record, and therefore, the question of expunging them does not arise, it said.

However, “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,” the court added.

In the right spirit

It is to be understood that constitutional courts — which enjoy the power of contempt to punish scandalising comments that affect the administration of justice — have to stand as staunch proponents and sentinels of free speech. While judicial action in the case of hate speech is more than warranted, should personal attacks be allowed?

Essential as part of their inquiry, judges will also continue to make comments and observations to decide cases. If there is an overreach, and fair criticism is posted on social media, it should be taken in the right spirit.