The opinion of the judiciary should be reflected only through judgments and orders and not through oral observations, be it on Kashmir or any other contentious issue, so that the purity of the judicial process is protected
By Devadatt Kamat
A judge speaks through his judgments. However, oral comments made by judges during a hearing routinely make headline news as “views of the Court”. Legally speaking, the views of a Court of law have to reflect only in judgments or orders. Oral observations or comments have no sanctity in law. When oral comments and observations of judges are quoted in mainstream media as views of the Court, it has the potential of masquerading as the institutional opinion of the judiciary which ought to be reflected only through its judgments.
For the Court to make oral comments that a more humane approach is needed in Kashmir is not only crossing the lakshman rekha laid down by the constitution for the judiciary, but it could also have a demoralizing effect on our armed forces who are battling a volatile situation in the Valley.
Recently, a bench of the Supreme Court was hearing an appeal filed by the State of Jammu and Kashmir challenging the direction of registration of an FIR against a superintendent of police for allegedly killing a civilian. It was reported in the national media that the bench had observed that a “humane approach needs to be evolved in these matters”. Newspapers then carried these observations as the views of the Supreme Court on Kashmir.
KASHMIR, INDIA’S PROBLEM
With respect to the judges of the Supreme Court, Kashmir is not a judicial problem. It is India’s political problem. The Court in the said case was concerned with the validity of the registration of an FIR. Was it necessary for the Court to make the “humane approach” remark? Is the approach of the State “humane” in defending its people? Are the terrorists humane? These questions are pure political issues.
Any loose talk of a judge seriously undermines the constitutional authority and trust reposed in him. George Mikes in his article “Professional Deformities” rightly says judges should avoid “sermons on the mount”.
The approach that ought to be followed in Kashmir is only a political and not judicial quagmire. Courts are mandated to function and adjudicate within the paradigm of the grundnorm of the constitution and the laws of the land. The political approach to Kashmir is not at all in the realm of judicially manageable standards. If there is a violation of the penal law, no doubt, the Court will take it to the logical legal consequence. But for the Court to make oral comments that a more humane approach is needed in Kashmir is not only crossing the lakshman rekha laid down by the constitution for the judiciary, but it could also have a demoralizing effect on our armed forces who are battling a volatile situation in the Valley.
However, this simple example raises the largely undebated question on whether judges of Constitutional courts can afford to express opinions orally during court hearings which are not reflected in their orders and judgments. A citizen expressing his angst at the rising levels of corruption in public life or handling of a political situation as in Kashmir is perfectly justified and in fact, desirable in a democratic polity.
Historically, judicial propriety has always demanded that a judge while conducting his proceedings in Court should speak as sparse as possible in the court room. Casual speech or sermonizing is way out of line of sanctioned judicial conduct.
However, due to the position of a judge in the constitutional scheme, his words carry weight and are meant to reflect a judgment on what is right and what is wrong. Historically, judicial propriety has always demanded that a judge while conducting his proceedings in Court should speak as sparse as possible in the court room. Casual speech or sermonizing is way out of line of sanctioned judicial conduct. The purity and sanctity of the judicial process have to be protected by well-reasoned, well-researched and enlightened views of the judge as reflected in his judgments. Any loose talk of a judge seriously undermines the constitutional authority and trust reposed in him. George Mikes in his article “Professional Deformities” rightly says judges should avoid “sermons on the mount”.
While public debate and expression of a citizen’s opinion on issues facing the nation is the sign of a healthy democracy, it is equally important that judges should keep away from participating in this debate in the courtroom. The judiciary, which is the sentinel on the quive should perform its duty only through the medium of objective judicial pronouncements and not through empty sermons. This principle flows not only from well-established cannons of judicial etiquette but also from the very foundations of the constitutional faith reposed in a judge.
—The writer is additional advocate general, Karnataka