When Inner Biases Speak : On Judges' Off-the-Cuff Remarks

Two recent hearings in the Supreme Court should call for introspection on the tendency of judges to make oral comments, which are merely their personal opinions and are either inopportune or lack an actual connection to the legal issues raised in the cases.

One was the Ranveer Allahabadia case, where the stand-up comedian was seeking the clubbing of the multiple FIRs registered for the offence of obscenity over the comments made during the “India's Got Latent” show. During the hearing, a bench led by Justice Surya Kant orally lashed out at Allahabadia's comments, and went to the extent of calling him a “dirty mind” and “perverted.” It is a different matter that the bench ultimately granted him interim protection from arrest, but on the condition that he or his associates should not air any shows in future. This order was later modified to allow the airing of shows which “would maintain the desired standards of decency and morality so that viewers of any age group can watch it.”

Second was the case of Rahul Gandhi against the summons issued in a criminal defamation case filed over his comments against VD Savarkar. A bench led by Justice Dipankar Datta orally slammed Rahul Gandhi for his comments. Justice Datta said that Gandhi would not have made such comments against a “freedom fighter” if he knew anything about the “history and geography” of the country. Justice Datta questioned the Congress leader calling Savarkar a British servant, asking if Mahatma Gandhi could be called a servant of the British merely because he signed the letters to the Viceroy as “Your Faithful Servant”? Interestingly, the bench did agree that Rahul Gandhi had a good case on law and was entitled to a stay. But, for getting the benefit of an interim order, Gandhi should refrain from making such comments against “freedom fighters”, Justice Datta said orally. The bench granted the interim relief after Gandhi's counsel gave an oral undertaking.

In both cases, the comments were the subjective views of the individual judges, which were expressed even before the commencement of the trial on the contested issues. Whether Allahabadia's comments attract the offence of obscenity or Gandhi's comments are defamatory is to be determined in a trial which is yet to be conducted by the concerned trial court. Therefore, the expression of oral views by a Judge of the Supreme Court on the subject matter could prejudice the trial, given the wide reportage the comments received. Ironically, in both cases, the bench prima facie agreed that the petitioners were legally entitled to the reliefs sought.

Last year, in a suo motu order passed against certain controversial comments made by a Judge of the Karnataka High Court, the Supreme Court (Constitution Bench) said that "casual observations often reflect individual bias of the Judges" and advised caution. The Court observed:

“Judges need to be conscious of the fact that each individual bears a certain degree of accumulated predispositions, based on their experiences of life. Some may be early experiences. Others are gained later. Every Judge should be aware of those predispositions. The heart and soul of judging lies in the need to be impartial and fair. Intrinsic to that process is the need for every Judge to be aware of their own predispositions. Awareness of these predispositions is the first step in excluding them in the decision making process. It is on the basis of that awareness that a judge can be faithful to the fundamental obligation to render objective and fair justice. Every stake holder in the administration of justice has to understand that the only values which must guide decision making are those which are enshrined in the Constitution of India.”

In 2021, in the context of certain comments made by the Madras High Court against the Election Commission of India, the Supreme Court advised the Judges to be cautious while making off-the-cuff comments.

“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.”

Recently, while disapproving of certain observations made by the Calcutta High Court on teenagers, the Supreme Court stated that a “Judge has to decide a case and not preach.”

In the recent Imran Pratapgarhi case, the Supreme Court stressed that Judges must strive to protect free speech, which is not violating any law, even if they don't agree with or like the content of the speech.

"The Courts are duty-bound to uphold and enforce the fundamental rights guaranteed under the Constitution of India. Sometimes we the judges may not like the spoken or written words, but still, it is our duty to uphold the fundamental rights under Article 19(1). We judges are also under an obligation to uphold the Constitution and the respective ideals.”

A striking aspect in both the Allahabadia and Rahul Gandhi cases is that the Court did grant the petitioners interim relief, but only after putting restraints on their future exercise of their right to freedom of speech. This move to restrain their future speeches was not rooted in law but in the Judges' prejudices.

A Judge, like any other individual, may have strong personal views on various subjects. However, the judicial forum might not be the appropriate stage to ventilate those views, which may be better reserved for private conversations over a dinner table. After all, why should the public suffer a Judge's personal views on general subjects like history, politics, or morality, when the only expertise required of their office is knowledge of the law, and their foremost duty is to uphold the Constitution?

The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw.in