Despite being under the shade of Judicial Independence, Judges of the higher courts are under constant scrutiny. The possibility of abuse of judicial process by words or remarks has a constant bar on judges’ right to exercise freedom of speech. All of the things said ‘by the way’ may result in result in Expunction, which is the removal of an unnecessary comment of a lower court judge by a higher one.
The word ‘Expunge’ according to the Merriam-Webstar Dictionary is ‘to strike out’ or ‘to efface completely. The process of Expunction is the outcome of an application by an aggrieved party whose concern is any inappropriate statement that has been made by a judge on the case at hand.
A Judge has the power to use indiscriminate wordings in support of the main reasons of his decision. But these need to be fair and reasonable. A judgement of a case has two parts: the Ratio Decidendi which is the deciding factor and Obiter Dicta which are words said by the way. The former is binding while the latter is persuasive. Article 111 of the Constitution of Bangladesh states that the decisions of the Supreme Court shall be binding on all subordinate courts.
A judgment can also be divided into Strictures and Outbursts. Stricture is considered to be judgment and is remembered for long while outbursts are usually made by a Judge in the hearing stage by judges out of emotions. Outbursts are made in the heat of the moment and mostly forgotten. Usually, strictures are more prone to be expunged by a Higher Court.
Strictures and Oral remarks do not generally possess inappropriate statements. It would be foolish of someone to say Judges use Oral remarks to cause malice. In fact on many occasions, such oral remarks of a judge had more positive impact on the society than the main reasoning of a case. Strictures sometimes contain important directions which are necessary for the welfare of the state.
There has been many instances around the world where passive comments by judges said in good faith were misinterpreted to create controversy. However under the principle of Judicial Independence, a Judge is not bound in any way to restrain himself from making opinions which he finds appropriate for the case. He may be considered to be well within his power to comment on anything while giving the judgement of a case.
Expunging inappropriate statements from a judgment is a common practice to keep the judiciary in check all over the world. For example in Pakistan, the analogy made by the judge between PM Nawaz Sharif and Mario Puzo’s Godfather character in the verdict of Panama Papers has been expunged by a higher court upon application.
The Supreme Court of India in Advocate General of Bihar Vs. High Court Judicature at Patna (1986)2 SCC 577 ordered for the expunction of strictures made by the learned single Judge of the High Court against the Advocate General of the State.
In the UK, Lord Denning’s statements have also faced expunction by the House of Lords in the case of Duport Steels Ltd. & Ors. vs Sirs & Ors. (1980)
Judicial Independence plays a key factor in determining the smooth administration of justice. Democracy is only ensured by giving maximum freedom to the judiciary. Therefore it becomes the sole responsibility of the Judges to ensure that no one finds a reason for pointing fingers at them.