Citizens beware, oral remarks of the Courts are not the law

The Supreme Court is presently hearing one of the most important constitutional law cases in recent past i.e., recognition of same-sex marriage, a case that will have significant repercussions for the LGBTQ+ community. Given its importance, the proceedings of the case are being heavily reported and also live streamed in a welcome move. Unfortunately, the press coverage especially on social media has been poor. It has either turned the proceedings into an adversarial contest between the Supreme Court and government, or led the public to believe that the case has already been decided or the Court has made its mind. The internet is full of videos with intense background music and eye-catching titles so as to generate attention and create a perception of animosity between the Court and the Union government. For instance, a YouTube video containing snippets of a judicial exchange between the Chief Justice and the Solicitor General is titled as ‘CJI snubs SG, and has over 13,000 views. Another is titled ‘We have Power: CJI to SG and has over 51,000 views.

However, this post is not concerned with these misleading videos but the public perception emanating from the reporting i.e., the case has been decided or the Court has made its mind. Recently, several online forums reported that Supreme Court observed that recognizing same-sex marriage is the task of the legislature and asked the government to devise a means to confer rights without the label of marriage. For a lay person, this gives the belief that the Court has decided the case and concluded that any relief for the same-sex persons lies with the parliament and not itself. However, if one watches the live stream, it is clear that this is a mere dialogue between the Court and the Solicitor General. The Court has asked the Solicitor for the views of the government and not directed it to do anything. In fact, the proceedings are replete with exchanges wherein the Court has posed questions to the arguing counsel just to identify their argument and obtain clarity.

For instance, in one of the hearings (20th April) while listening to the arguments of the Senior Advocate Dr. Singhvi the Chief Justice had remarked that the Court is not bound by an original interpretation of the Constitution and hence, should it be bound by the original intention of the Special Marriage Act. On the other hand, when Senior Advocate Saurabh Kirpal was arguing for the petitioners, the Chief Justice countered his arguments asking whether the original intention of the Act was to include same-sex couples.

It must be noted that observations made by the Court during a hearing are not binding law. They are a mere exchange of ideas and an attempt by the Court to analyse and test the arguments made by the parties before it. In fact, at times the Court plays the role of a devil’s advocate to test the strength of an argument. The Court in a recent case elaborated on the purpose of judicial remarks and observed,

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.”

The binding law that arises from the proceedings is the written judgement or order passed by the Court. In the year 2021, the Madras High Court had passed some critical oral remarks against the Election Commission against which the Commission approached the Supreme Court. The Commission argued that the remarks were widely circulated on the media and had tarnished the reputation of the Commission and therefore, a direction should be passed that the press must only report written orders issued by the Court and not the Court’s oral observations. The Supreme Court rejected this prayer on grounds of the need for open court proceedings and the right to free speech and expression. In this case, the Court clarified that oral observations are not part of the record and do not constitute binding law. It observed, “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.” 

Although the Court did not pass any observations on reporting, there is an implied obligation on reporters to ensure that their reports are accurate and not bereft of context or necessary information. Last year, the Chief Justice himself had called out the phenomena of mistaking oral remarks for substantive law by stating that “social media thinks that every time we say something, that’s the judgment.” This misunderstanding has at times landed Judges in trouble and they have drawn the ire of the public because of remarks made in Court. For instance, Former Chief Justice Bobde was heavily criticised for his remarks during a bail hearing in a rape case when he asked the accused “will you marry the victim?”.  Later the Judge had to clarify that his remarks were made in context of the case, however, they were misreported without context.

The Supreme Court’s decision to livestream its proceedings was revolutionary and one of its advantages was that it granted access to the media for accurate reporting of the cases. Earlier one had to rely on advocates involved in a case or the select few journalists who covered courts to obtain reports from the courtrooms. Livestreaming allows everyone the chance to witness the court in action and see for themselves the proceedings. It is hoped that this will be used positively by both the media and the citizens to gain insights into the workings of the judiciary. The media for accurate reporting and the citizens for ensuring that they have first hand knowledge of how the judiciary functions and do not fall prey to inaccurate reporting.

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