Freedom and constraints of judicial conduct

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 1767 of 2021

(Arising out of SLP (C) No. 6731 of 2021)

The Chief Election Commissioner of India ....Appellant

Versus

M.R Vijayabhaskar & Ors. ....Respondents

Hon. Justice D. Y. Chandrachud

held as below

C.4 Freedom and constraints of judicial conduct

34 The grievance of the EC does not arise as much from the impugned order

of the Madras High Court, as it does from the oral remarks made by the judges of

the High Court during the hearing on 26 April 2021. The High Court has not been

impleaded before us and has not had an opportunity to respond. Thus, we have

been unable to discover what truly transpired in the proceedings and the exact

remarks that were made. Unless live-streaming and archival of court proceedings

sees the light of the day (three years have elapsed since the decision in Swapnil

Tripathi (supra)) the absence of records of oral proceedings would continue to

bedevil the system. However, a constitutional authority such as the EC, has

adverted to the oral remarks on oath in its affidavit. These have not been disputed

by the respondent. The oral remarks have received widespread publicity in

electronic and print media. We have, in deference to the independent

constitutional status of the High Court, not required a confirmatory report from the

Registrar General of the High Court.

35 The independence of the judiciary from the executive and the legislature is

the cornerstone of our republic. Independence translates to being impartial, free

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from bias and uninfluenced by the actions of those in power, but also recognizes

the freedom to judges to conduct court proceedings within the contours of the

well-established principles of natural justice. Judges in the performance of their

duty must remain faithful to the oath of the office they hold, which requires them

to bear allegiance to the Constitution. An independent judiciary must also be one

which is accountable to the public in its actions (and omissions).

36 The manner in which judicial proceedings are conducted, especially in our

superior courts, 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. Many a times, judges play the role

of a devil‘s advocate with the counsel to solicit responses which aid in a holistic

understanding of the case and test the strength of the arguments advanced

before them. That is where the real art of advocacy comes to play. The order or

judgment of the court must indicate a process of reflection and of the application

of mind of the judge to the submissions of opposing parties.

37 The diversity of judicial backgrounds brings polyvocality in judgments and

has enriched our jurisprudence for over seven decades since Independence. The

humanity intrinsic to each judge allows them to transcend the language of the law

to do complete justice. In the pursuit of doing justice and in the course of an open

deliberation in court, propositions may be put forth and observations are made in

order to facilitate the process of arriving at an acceptable outcome based on the

law but which is in accord with justice. Observations during the course of a

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hearing do not constitute a judgment or binding decision. They are at best

tentative points of view, on which rival perspectives of parties in conflict enable

the judge to decide on an ultimate outcome. This exchange of views, perspectives

and formulations is but a part of evolving towards a solution which accords with

justice according to law. An exchange of views from the Bench is intrinsic to a

process of open and transparent judging. The revealing of a judges‘ mind enables

opposing parties to persuade her to their points of view. If this expression were to

be discouraged the process of judging would be closed. As Lord Denning MR

observed in Sirros vs Moore22:

―Every Judge of the courts of this land — from the highest to the

lowest — should be protected to the same degree, and liable to

the same degree. If the reason underlying this immunity is to

ensure ‗that they may be free in thought and independent in

judgment‘, it applies to every Judge, whatever his rank. Each

should be protected from liability to damages when he is acting

judicially. Each should be able to do his work in complete

independence and free from fear. He should not have to turn the

pages of his books with trembling fingers, asking himself: ‗If I do

this, shall I be liable in damages?‘ So long as he does his work in

the honest belief that it is within his jurisdiction, then he is not

liable to an action. He may be mistaken in fact. He may be

ignorant in law. What he does may be outside his jurisdiction —

in fact or in law — but so long as he honestly believes it to be

within his jurisdiction, he should not be liable. Once he honestly

entertains this belief nothing else will make him liable. He is not

to be plagued with allegations of malice or ill will or bias or

anything of the kind. Actions based on such allegations have

been struck out and will continue to be struck out. Nothing will

make him liable except it to be shown that he was not acting

judicially, knowing that he had no jurisdiction to do it.‖

22 [1975] QB 118

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This Court has also had the opportunity to deal with a matter concerning the

expunging of adverse remarks from judicial records in Kashi Nath Roy vs State

of Bihar23

. The judgment of the two Judge bench noted:

―7. It cannot be forgotten that in our system, like elsewhere,

appellate and revisional courts have been set up on the

presupposition that lower courts would in some measure of

cases go wrong in decision-making, both on facts as also on law,

and they have been knit-up to correct those orders. The human

element in justicing being an important element, computerlike functioning cannot be expected of the courts; however

hard they may try and keep themselves precedent-trodden

in the scope of discretions and in the manner of judging.

Whenever any such intolerable error is detected by or

pointed out to a superior court, it is functionally required to

correct that error and may, here and there, in an appropriate

case, and in a manner befitting, maintaining the dignity of

the court and independence of judiciary, convey its

message in its judgment to the officer concerned through a

process of reasoning, essentially persuasive, reasonable,

mellow but clear, and result-orienting, but rarely as a

rebuke. Sharp reaction of the kind exhibited in the aforeextraction is not in keeping with institutional functioning.

The premise that a Judge committed a mistake or an error

beyond the limits of tolerance, is no ground to inflict

condemnation on the Judge-Subordinate, unless there existed

something else and for exceptional grounds.‖

(emphasis supplied)

In Dr Raghubir Saran vs State of Bihar and Another24

, this Court particularly

advised higher Courts to enable judges of the lower Courts to freely express their

opinion. Chief Justice K Subba Rao, speaking for a three Judge bench observed:

―6. […]

I entirely agree with the remarks. I reiterate that every judicial

officer must be free to express his mind in the matter of the

appreciation of evidence before him. The phraseology used by

a particular Judge depends upon his inherent reaction to

falsehood, his comparative command of the English

language and his felicity of expression. There is nothing

more deleterious to the discharge of judicial functions than

23 (1996) 4 SCC 539

24 (1964) 2 SCR 336

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to create in the mind of a Judge that he should conform to a

particular pattern which may, or may not be, to the liking of

the appellate court. Sometimes he may overstep the mark.

When public interests conflict, the lesser should yield to the

larger one. An unmerited and undeserved insult to a witness

may have to be tolerated in the general interests of

preserving the independence of the judiciary. Even so, a duty

is cast upon the judicial officer not to deflect himself from the

even course of justice by making disparaging and undeserving

remarks on persons that appear before him as witnesses or

otherwise. Moderation in expression lends dignity to his office

and imparts greater respect for judiciary. But occasions do arise

when a particular Judge, without any justification, may cast

aspersions on a witness or any other person not before him

affecting the character of such witness or person. Such remarks

may affect the reputation or even the career of such person. In

my experience I find such cases are very rare. But if it happens, I

agree with the Full Bench of the Bombay High Court that the

appellate court in a suitable case may judicially correct the

observations of the lower court by pointing out that the

observations made by that court were not justified or were

without any foundation or were wholly wrong or improper.‖

(emphasis supplied)

38 The duty to preserve the independence of the judiciary and to allow

freedom of expression of the judges in court is one end of the spectrum. The

other end of the spectrum, which is equally important, is that the power of judges

must not be unbridled and judicial restraint must be exercised, before using strong

and scathing language to criticize any individual or institution. In A.M Mathur vs

Pramod Kumar Gupta25

, a two Judge bench of this Court, speaking through

Justice K Jagannatha Shetty held:

―13. Judicial restraint and discipline are as necessary to the

orderly administration of justice as they are to the

effectiveness of the army. The duty of restraint, this humility

of function should be a constant theme of our judges. This

quality in decision making is as much necessary for judges

to command respect as to protect the independence of the

judiciary. Judicial restraint in this regard might better be called

judicial respect, that is, respect by the judiciary. Respect to those

25 (1990) 2 SCC 533

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who come before the court as well to other co-ordinate branches

of the State, the executive and the legislature. There must be

mutual respect. When these qualities fail or when litigants and

public believe that the judge has failed in these qualities, it will be

neither good for the judge nor for the judicial process.

14. The Judge's Bench is a seat of power. Not only do judges

have power to make binding decisions, their decisions legitimate

the use of power by other officials. The 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. We concede that the court has the inherent power

to act freely upon its own conviction on any matter coming before

it for adjudication, but it is a general principle of the highest

importance to the proper administration of justice that derogatory

remarks ought not to be made against persons or authorities

whose conduct comes into consideration unless it is absolutely

necessary for the decision of the case to animadvert on their

conduct.‖

(emphasis supplied)

39 In balancing these two ends, the role of superior courts is especially

relevant. This Court must strike a balance between reproaching the High Courts

or lower courts unnecessarily, so as to not hamper their independent functioning.

This court must also intervene where judges have overstepped the mark and

breached the norms of judicial propriety.

40 We are tasked with balancing the rights of two independent constitutional

authorities. On one hand is the Madras High Court, which is a constitutional court

and enjoys a high degree of deference in the judicial structure of this country. The

High Courts perform an intrinsic role as appellate courts and as courts of first

instance in entertaining writ petitions under Article 226 (and as courts of original

civil and criminal jurisdiction in certain cases). They are often the first point of

contact for citizens whose fundamental rights have been violated. High Courts are

constantly in touch with ground realities in their jurisdictions. During the COVID-19

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pandemic, the High Courts across the country have shown commendable

foresight in managing the public health crisis which threatens to submerge

humanity. Their anguish when they come face to face with reality must be

understood in that sense. On the other hand is the EC, a constitutional authority

tasked with the critical task of undertaking superintendence and control of

elections under Article 324 of the Constitution. The EC has facilitated the

operation of our constitutional democracy by conducting free and fair elections

and regulating conduct around them for over seven decades. Its independence

and integrity are essential for democracy to thrive. This responsibility covers

powers, duties and myriad functions26 which are essential for conducting the

periodic exercise of breathing life into our democratic political spaces.

41 Today, the Court has not been called upon to determine the

constitutionality or legality of the actions of the EC in its conduct of the Assembly

elections in the five states. In restricting ourselves to the specific grievances that

have been urged by the EC, regarding the remarks made by the judges of the

Madras High Court, we find that the High Court was faced with a situation of rising

cases of COVID-19 and, as a constitutional Court, was entrusted with protecting

the life and liberty of citizens. The remarks of the High Court were harsh. The

metaphor inappropriate. The High Court - if indeed it did make the oral

observations which have been alluded to - did not seek to attribute culpability for

the COVID-19 pandemic in the country to the EC. What instead it would have

intended to do was to urge the EC to ensure stricter compliance of COVID-19

related protocols during elections.

26 Mohinder Singh Gill vs Chief Election Commr., (1978) 1 SCC 405

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42 Having said 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. 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. The power of

judicial review is entrusted to the High Courts under the Constitution. So high is its

pedestal that it constitutes a part of the basic features of the Constitution. Yet

responsibility bears a direct co-relationship with the nature and dimensions of the

entrustment of power. 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. All that needs to be clarified is that the oral observations during the course

of the hearing have passed with the moment and do not constitute a part of the

record. The EC has a track record of being an independent constitutional body

which shoulders a significant burden in ensuring the sanctity of electoral

democracy. We hope the matter can rest with a sense of balance which we have

attempted to bring.

43 These oral remarks are not a part of the official judicial record, and

therefore, the question of expunging them does not arise. It is trite to say that a

formal opinion of a judicial institution is reflected through its judgments and

orders, and not its oral observations during the hearing. Hence, in view of the

above discussion, we find no substance in the prayer of the EC for restraining the

media from reporting on court proceedings. This Court stands as a staunch

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proponent of the freedom of the media to report court proceedings. This we

believe is integral to the freedom of speech and expression of those who speak,

of those who wish to hear and to be heard and above all, in holding the judiciary

accountable to the values which justify its existence as a constitutional institution.IN THE SUPREME COURT OF INDIA