by SAYED KIRDAR HUSAIN and AAYUSH KHANNA
In today’s era of live-streamed hearings and real-time legal reporting, the spoken words of a judge no longer fades into the silence of the courtroom. Oral observations, whether thoughtful remarks or courtroom banters can rapidly shape public perception, influence the lower judiciary and can even bring the institutional character of the Court under public scrutiny.
Introduction
In a democracy where justice should not only be done but must also be seen to be done, the remarks of the judges play an important role and carry a substantial weight. This is particularly true in the common law systems like India, where judges not only apply the law but also interpret and shape it through precedents, statutes, and constitutional values. Unlike in the civil law structure such as in Germany, wherein the judges are seen as the neutral implementers of codified law applying an inquisitorial system through an objective lens, the Indian judges exercise considerable discretion, while interpreting the law involved. Their observations, generally referred to as the “oral dicta”, even when not part of the final judgement or the order, often influence legal perspectives and public discourse. In this growing digitised legal landscape, the court proceedings are accessible online and are frequently reported by legal media houses and pages. On one day, the higher judiciary expresses concerns over an insensitive or inconsistent remark made by a judge, the next day, a similar remark on the same tune emerges from the Apex Court itself.
On 15th April 2025, Justice B.R. Gavai and Justice Augustine Masih of the Supreme Court of India expressed concern over comments made by Justice Sanjiv Kumar of the Allahabad High Court while hearing a bail plea in a rape case wherein he stated that the “victim herself invited trouble”. Justice Gavai warned judges from making unsuitable comments in delicate matters like these. But here’s the irony. Just two months earlier, in February 2025, his lordship himself, referred to agricultural labourers as “a class of parasites” in a case concerning the adequacy of night shelters to house homeless people in New Delhi. No careful phrasing, just a sweeping and deeply problematic statement made from the highest bench of the land. The contradiction is hard to miss, and this inconsistency isn’t unique to one judge or one bench. There is an observable pattern of casual, offhand, and often unfiltered remarks from the higher judiciary that end up creating ripples far beyond their courtrooms.
Oral Remarks in the Age of Open Courts
In the landmark case of The Chief Election Commissioner of India v. M.R. Vijayabhaskar & Ors., the core issue began when a bench of the Madras High Court stated that the Election Commission was “singularly responsible for the second wave of COVID-19 and its officers should be booked on murder charges probably”. Naturally, the Election Commission was not happy about these comments and went to the Supreme Court seeking directions to bar the media from reporting the oral remarks as it “tarnished the image of an independent constitutional authority”. While the Supreme Court reiterated the absolute right of the media to report oral remarks, the bench still cautioned judges to curtail the indiscriminate use of off-cuff remarks like these. While reading or hearing these remarks, one might be of the view that these are just oral comments and are not even part of the final order. However, that is quite an illogical stance given that we live in an era of open judiciary in India. Judges occupy a space where every word is recorded, reported, and replayed. Platforms like LiveLaw and Bar & Bench ensure that judicial observations, whether its reasoned conclusions or courtroom banter, are consumed by the legal fraternity and the general public in real time. In such a hyperconnected legal culture, the lines between ratio, obiter, and rhetoric are increasingly blurred.
The authors believe that potential effects arising out of these remarks can be divided into two heads, one of course being the impact on the general media and public perception, which is bound to appear. The other prong is the impact on the lower judiciary, which is more concerning considering the fact that judicial pronouncements of the lower judiciary are often affected by the higher courts.
Judges in subordinate courts often aspire to climb the judicial ladder and in doing so, they internalize not only the decisions but also the demeanour and commentary of higher court judges. Take, for example, the comments made by Justice Surya Kant in the infamous Ranveer Allahbadia case pertaining to some alleged obscenity remarks made on the India’s Got Latent show. Justice Kant, during the hearing of the case on 18th February, 2025 categorically observed, “There is something very dirty in his mind, which has been vomited by him in the program…He is insulting parents also”. He further stated that Allahbadia’s content was “not something a family can enjoy together”.
Within days, a Mumbai Sessions Court judge, in a separate case, held that seemingly harmless remarks such as “I like you” and “you’re smart” could be considered obscene under certain circumstances. While the authors do acknowledge the point that the core issue pertaining to both the cases might be somewhat different. On one hand, Allahbadia’s case is related to the freedom of artistic expression and censorship, while the latter brings forth the issue of harassment. However, this does not undermine the fact that both the cases fall under the broader domain of obscenity jurisprudence. The verdict of the Sessions Court within days of the Supreme Court’s remarks might just be incidental and a coincidence, but we cannot ignore the possibility that judicial speech at the top subtly influences how cases are framed and decided at the bottom. There is a tendency to treat oral remarks as informal, off-the-record, or inconsequential. But in practice, they carry weight. They shape legal narratives. They influence litigants, lawyers, law students, and most importantly, lower courts.
Conclusion
While concluding this piece, it’s important to acknowledge that the Supreme Court is not blind to the issue. It has, on several occasions as highlighted earlier, spoken about the need for restraint and cautioned judges against making problematic remarks. However, these warnings currently appear to be merely persuasive and lack any binding or mandatory character. Although the actions of the judges in India are protected under The Judges (Protection) Act, 1985, this calls for the development of an internal framework embedded within judicial training at all levels that instills a deeper awareness of the weight judicial words carry and fosters a stronger sense of accountability in the minds of higher judiciary in India.
As mentioned before by the authors, this never-seen-before transparency in court proceedings is indeed a great boon, but it also attaches a greater responsibility on the judges to remain extremely cautious while conducting such proceedings. Remarks passed by the judges, that too, of the Apex Court can have far-reaching ramifications, and they must do so, with proper justifications, in the right forum, and only if it is essential to meet the ends of justice. Judges must be reminded that they are not just individuals speaking their minds; they are the voice of the institution, and their words carry legal, social, and moral authority.
Citation: Husain, Sayed Kirdar and Aayush Khanna, Oral Observations, Lasting Impressions: The Perilous Effect of Judicial Remarks, JuWissBlog No. 56/2025, 24.06.2025, https://www.juwiss.de/56-2025/
This work is licensed under CC BY-SA 4.0.