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The court can be discretionary but not whimsical: Dangerous waters, comments by Judges in Nupur Sharma case and legality of oral observations

In the daily news cycle of tweets and reactions, it is incumbent upon the Court to function as an institution in a fearless and fair manner. While the Court does function in a discretionary manner on the writ side, it cannot function in a whimsical manner.

The exchange between a Judge and an Advocate during the adversarial process of judicial adjudication is often said to enrich the quality of dialogue between the two. Different judges interact differently owing to varying personal approaches. Every advocate dreads a situation which has a lack of exchange, generally considered to be a signal of a lost cause. The senior counsels, having proved their salt at the Bar, are adept at dealing with these exchanges in order to present the best possible case for the litigant. A healthy exchange, without a doubt, elevates the level of the debate and ensures that the advocate gets ample opportunity to dispel any doubts that a Judge may have with regard to his case. 

Over the course of the years, with the opening of the judicial process, this dialogue between a counsel and a Judge has been attracting increased public attention. The submissions of the advocate and the observations of the Judge, especially in matters of public importance or curiosity, are contemporaneously reported, published and/or tweeted verbatim.  This live reporting has become a window for the general public to understand the machinations of the judicial process. This live reporting of the judicial process has its own consequences which have its own positives and negatives. 

The Supreme Court itself has consistently from the landmark ruling of Naresh Shridhar Mirajkar v. the State of Maharashtra, AIR 1967 SC 1 in the 60’s to the recent judgment of Swapnil Tripathi v Supreme Court of India (2018) 10 SCC 639, held that a reporting of judicial proceedings increases access to justice and effectuates the right to open justice and public trial, enhancing the “right to know” for the public at large. It is clear that the Court, therefore, constitutionally permits and to an extent promotes this live access to the Court, with certain narrow exceptions with higher countervailing interests. Despite the obvious positives highlighted by the Court, there are some growing apprehensions with regard to such live access. 

The primary apprehension on live access revolves around the fear of deterioration of quality of the dialogue between the Bar and the Bench during the hearing of a matter. It is apprehended that once the fact of any exchange being live reported is implanted in the subconscious mind of a Judge and the advocate, the quality of the dialogue between the two would be coloured by the same thereby altering its genuineness. It is apprehended that the participants would consciously or sub-consciously restrain themselves from free expression, perhaps fearing that what may be appropriate inside a Courtroom for experienced practitioners, may not be perceived in the same manner outside it. It may also be the case that the participants sub-consciously apprehend that with a lack of context attached to any observation or statement made during the dialogue, the same may be prone to misinterpretation by the public at large who may not necessarily understand or appreciate the subtleties or the niceties of the law or the legal process. 

While the above aspects highlight the apprehensions with regard to the restraining or hindering of dialogue in the adversarial process, there is a flip side to the same. It is feared that the participants in this dialogue, especially the advocates representing partisan interests, may seek to utilize this live access and reporting in order to unnecessarily sensationalize the issue or for personal publicity. It is further apprehended this may alter the nature of the dialogue and may result in inculcating a culture which is not of a serious legal enquiry but rather is publicity or image-oriented. This twitter-isation of discourse, therefore, reposes increased responsibility on the shoulders of the participants of the adversarial process. The fact that any and all remarks can and will be relayed across the world with the ability to remain accessible for eternity, commands that the platform of the Court does not become a mere theatre.

The legal position on oral observations

The Supreme Court has in fact taken judicial notice of ‘off the cuff’ remarks in a petition filed by the Election Commission against some oral observations made by a Judge of the Madras High Court in Election Commission of India v. M.R. Vijayabhaskar, (2021) 9 SCC 770. The Court clarified that oral remarks are not a part of the official record and do not express any formal opinion and hence, cannot be expunged. The Court has highlighted that mostly such oral observations are elicitation-oriented. 

However, the Court relayed some apprehension about an increasing trend of Judges making caustic observations against litigants during hearings. The Supreme Court highlighted that “We must emphasize the need for Judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misrepresentation”. The case of the Election Commission was that in the context of the Covid-19 pandemic, the oral observations of the Judge of the Madras High Court of a “murder charge” was incorrect. The Supreme Court observed, in this context, that the remarks of the High Court were “harsh” and that the metaphor was “inappropriate”. 

It is in this light that the ex parte oral observations made by the Supreme Court in the case of Nupur Sharma must be examined. The following are the remarks that require scrutiny and have attracted reactions in the public domain. Let’s examine the comments one by one. The entire court exchange was documented by a journalist present in the courtroom and has been reproduced here. Every effort has been made to maintain the correctness and continuity of the comments made by Judges.

Oral ObservationsComment
Bench: Why has she filed with a deceptive name? She wants to hide her identity that people might be watching?The question is surprising and insensitive. There seems to be nothing deceptive with the title of the petition
Advocate: Seems to have a serious security threat  The response correctly seeks to highlight the security threat which is something in the public domain.
Bench: She has a security threat or she has become a threat to the security of the nation?The said observation is unfortunate that seeks to unfairly and without any inquiry passes the comment against the Petitioner.
Bench: The way she has ignited the whole country and she has the cheek and courage to come to the court to ask for discretionary relief?This is an open-ended allegation bordering on being derogatory and defamatory with no factual or logical basis whatsoever. 
Bench: This lady is singlehandedly responsible for the burnings in the country.The said comment again seeks to hold the speaker responsible for the irrationality or the fanaticism of others and further passes an unfair comment on the Petitioner for merely filing a petition seeking enforcement of her rights.
Bench: The anchor very mischievously incited each one of them including another gentleman who was a religious leader. This observation condemns a third person without any factual basis or inquiry.
Bench: This lady [has a] completely loose tongue that she keeps on making all irresponsible statements and she claims that she is a lawyer with 10 years standing? This is shamefulThis observation is highly objectionable and makes a personal comment against a woman without any basis.It seeks to make a character assessment and nonchalantly pass a moral judgment without factual enquiry. 
Advocate: The statement is withdrawn, kindly see. 
Bench: What do you want from us?  
Advocate : The FIRs should be clubbed at one place. That’s all.  
Bench: This is not the way to withdraw. She should have gone on air and apologised to the whole country.The manner of withdrawal of the statement is completely immaterial to the issue at hand.
Advocate: My lords have laid down that in case of registration of FIRs in multiple jurisdictions, only the first FIR stands. The first FIR is registered in Delhi.  
Bench: And what the Delhi Police has done? Please don’t compel us to open our mouths. When she makes a complaint, the person is arrested. And when there is an FIR against her, she is not even touched.Without any enquiry, the passing of such comments against the investigating agency is uncalled for.
Advocate: The content of the transcript, does not make a case [points to relevant part]. A particular insinuation is made towards the Shivling as a phavvara [fountain] 
Bench: What is her business or what is the business of this TV channel to discuss a matter which is sub-judice before the Supreme Court? Except that they are promoting a particular agenda.Apart from the fact that sub-judice matters which attract public interest and curiosity are debated day in and day out in various public forums, the Court has itself said that discussing sub-judice matters on TV channels cannot be barred and is in fact a part of freedom of speech and expression.
Bench: [Refers to relevant part] It is so disturbing. This is the outcome of what happened unfortunately at Udaipur.  This is perhaps the most unfortunate observation which provides a justification for an act of terror. Even ardent terror apologists would find this reference simply, appalling.
Advocate: These are matters of debate within society.   
Advocate: My lords have laid down the law that multiple FIRs on same incident cannot stand. 
Bench: Even if we have laid down that law, this is a fit case that we refuse to apply that lawThe application of the law has to be the same for every citizen and cannot be denied as per personal opinions.
Advocate: [Showing withdrawal of statement] She has withdrawn the statement  
Bench: We have seen the withdrawal. It was too late in the day to withdraw. Even the withdrawal is conditional.. where our “so and so” was being insulted continuouslyThis observation effectively ridicules the faith of the litigant.
Advocate: If the incident is one, and there is registration of multiple FIRs with regard to every citizen, my lords have laid down the law.   
Bench: These are the people who are not religious at all. They have no respect for any religion. A religious person will have respect for other religions also. It is all to gain cheap popularity and just to achieve some political or nefarious agenda that all these statements are madeAnother personal comment is passed against a litigant without any enquiry or basis in fact and/or law.
Advocate: [Points to the allegedly problematic speech of Petitioner and reads] The speech does not make out any offence.   
Bench: Go file Section 482 petitions [inherent power of High Court for quashing of FIRs] before High Courts.  
Advocate: My lords have granted indulgence previously in cases of multiple proceedings  
Bench: This petition also shows her obstinate character and her arrogance that she thinks that the Courts of the Magistrate are too small for her. Another personal comment which is unbecoming of the forum.
Advocate: Kindly see the antecedents of the Petitioner. She is a practising advocate and she was a spokesperson for a political party. She has been appearing before screens and there has never been any such allegation made before this incident.   
Bench: If you are a spokesperson, it is not a license. Sometimes powers goes to your head, people think that yes I have a backup therefore I can make any kind of statement and go scot-free.  Another personal attack outside the issue at hand without ascribing reasons.
Advocate: The statement was not made at the beginning. Mischievous provocation took place.    
Bench: If there was a mischievous provocation, the first thing she should have done is file a case against the anchor. That you won’t do. Because you need them every day. This observation ignores that provocation was not by the Anchor rather was by the other panellists.
Advocate: The provocation is not by the anchor. It is by the other panellists. [Shows relevant part] A particular insignia of a particular religion is described as a Phavara. [reads relevant portions] 
Advocate: My lords even within the same religion, there are serious debates on these issues. Citizens have been granted rights.  
Bench: [sarcastically] Yes everyone has a right to speak, in a democracy, the grass has the right to grow and a donkey has the right to eat.   This observation, apart from ridiculing the concept of democracy itself, represents a sorry state of affairs.
Advocate – Seeks to rely on judgments in T.T. Antony v. the State of Kerala (2001) 6 SCC 181; Arnab Ranjan Goswami vs. Union of India & Ors. (2020) 14 SCC SC 12; Amish Devgan v. Union of India, (2021) 1 SCC 1 cases where anticipatory bail was granted and/or multiple FIRs were consolidated. Showing interim order in case of Arnab Goswami case [reads legal principles enshrined in that order]  
Bench: There is nothing like a principle of law laid down the interim order [Arnab Goswami case]The interim order in Arnab’s case in fact clearly discussed the principles of law which the Court balanced before passing a favourable interim order in favour of the litigant.
Advocate: My lords may kindly take up the final judgment in this case [Arnab Goswami’s case] which lays down the principles. [Reads the judgment of Arnab Goswami on the issues of multiple FIRs being vexatious and protection against the same being a part of the right to fair trial]  
Bench: Therefore, you have a remedy, you can approach the High Court. 
Advocate: [Reads part of the Arnab judgment which holds that making a litigant who has FIRs on the same transaction in multiple jurisdictions approach various High Courts for the same relief would result in a multiplicity of proceedings and unnecessary harassment to the Petitioner]. The fact remains that this is for one statement in one particular episode. The law laid down by this Court is always for every citizen.  
Bench: It is not every citizen. Here also some special treatment is given to a journalistAnother unfortunate observation.  This time not just against the litigant but also against the order passed by the Supreme Court itself in the case of Arnab Goswami.
Advocate: What am I asking? I am asking that let investigation be done at one particular place. That is the very least that my Lords may consider. I am not saying that I should not be investigated  
Bench: The case of a journalist is at a different pedestal as compared to a citizen or spokesperson who goes on the channel and starts lambasting others making irresponsible statements without even an inkling of the ramifications and serious consequences that how seriously it will disturb the fabric of the society.  The case of a Journalist cannot be different from the case of a citizen. In fact, the citizen being in a weaker position as compared to a Journalist, deserves more indulgence from the Court. The Constitution requires that the application of law should be the same for all and does not allow arbitrary exercise of discretion.
Advocate: Let me assume that proposition is correct, citizens have fundamental rights and fact remains that there is one incident. And all I am asking is the clubbing of that FIR. TT Antony says that there cannot be a second FIR on the same incident.  
Bench: We are asking you repeatedly, what has been done in that FIR? 
Advocate: I have joined the investigation.  
Bench: Naturally, and there must be red carpeting for you. There must be a red carpet for you. This is how you have joined. Another uncharitable and unfair statement against the investigating agency without any factual enquiry.
Advocate: If your Lordships have laid down that every citizen, not just journalists can approach your Lordship for clubbing in one place. The laid down is for all citizens and there cannot be different standards. Kindly see the judgment in Satinder Singh Bhasin case [case of a business concerning multiple FIRs]He is not a journalist. He is a businessman. My submission is that every citizen is entitled to such an indulgence. Being put to multiple FIRs on one incident is contrary to basic tents of law, contrary to Cr.P.C. and contrary to Article 20(3) [protection against double jeopardy]. Even if a person is not a journalist, your Lordships have applied the same yardstick.  
Bench: Even taking your case, assuming what you are arguing is taken to a logical conclusion, the Delhi FIR is dated 8th June 2022.  
Advocate: That is the second FIR is general hate cases. My FIR is on 28thMay, 2022.  
Bench : What is the date of your first FIR? 
Advocate: 28th May. [Refers to relevant] I am not saying don’t investigate. I am relying on the judgments of this Court for every citizen.  
Bench: Yes we have seen that.  
Advocate: I should not be treated unequally. Your Lordships have laid down a yardstick specifically for multiple FIRs of the same incident. Even if my conduct is condemnable if Your Lordship feels, but then treatment of law should be equal.    
Bench: When you get the FIR registered against XYZ [referring to one Mr Zubair] he is arrested immediatelyThe comment refers to a separate sub-judice proceeding with an incorrect factual allegation.
Advocate: My Lords he is not arrested in my FIR.  
Bench: Nobody has dared to touch you. It shows your cloutAnother personal remark against the litigant and also against the investigating agency.
Advocate: No My Lords. That arrest is not in my FIR. 
Bench: When the conscience of the Court is not satisfied. We must mould the law accordingly. Starts dictating order – “No case to …”The law is implemented on facts and not necessarily on personal conscience of people. 
Advocate: Then my Lords may permit me to withdraw the case.  

Dissecting the courtroom exchange and the comments by the Judges

Apart from the fact that the above observations, almost in their entirety are untrue and grossly inappropriate bordering on being defamatory and derogatory, in the world of digital media and live access, these observations have rendered the litigant guilty in the minds of millions. Further, considering that observations have a digital footprint which is indelible, such observations prejudice the litigant’s case to no end and effectively make any other remedy before a lower forum, an exercise in futility. Such observations are not technically binding on lower courts or the High Courts, however, considering that these were observations of the Apex Court of the country’s deeply entrenched judicial hierarchy would make it practically impossible to have a fair hearing.

At present, from the tenor of the arguments of the Advocate, it was clear that the Petitioner was merely seeking protection against vexatious criminal prosecutions arising out of the same event because, in these prosecutions, FIRs have been filed in various States, it is not possible to approach one particular High Court seeking clubbing of all such cases. The Supreme Court has time and again even in cases of bitcoin scamsters, Ponzi Scheme Operators or Real Estate Builders, and has exercised the power under Article 32 in order to club multiple FIRs on the same transaction/incident as it is the only judicial forum having territorial jurisdiction over multiple States and the entirety of the country. The said proposition is so well settled that the judgment in Arnab Ranjan Goswami vs. Union of India & Ors. (2020) 14 SCC SC 12, refers to precedents on this subject as a “parading of the familiar”. Considering that the same is well settled and also forms a part of the right to life and liberty and the protection against double jeopardy, it is the duty of the Supreme Court to implement the same for one and all.  Classifications cannot and ought not to be made merely on the basis of the profession practised by individuals.

Another issue which would have arisen in this case had the Court granted the initial indulgence, would be examining the question of whether mere repetition of the facts which are available in the public domain can ever be a criminal offence?  It has been widely reported in various forums of media that the observations made in the T.V. telecast are actually mere repetitions of what various public speakers, religious scholars and religious scriptures themselves state with particular clarity.  It has also come to light that such issues are often openly discussed and debated in various Islamic nations and by the world at large and are seemingly considered innocuous. In such an event, an interesting legal question would have arisen considering the presence of such facts and discussions in the public domain – whether the mere reference to them by a person can ever be considered to be a malicious insult or an attempt to incite violence attracting the rigours of Section 153A and 295A of the IPC. It would have also represented an opportunity to discuss the previous cases and incidents on such issues from Rangeela Rasool in the early 1920sto Kishan Bharwad more recently.  Therefore, even if a discretionary test was to be applied, considering the factual position emerging, the present case brought up an important question of law which ought to have been entertained.

While it is difficult to understand the legal, factual or moral basis of the observations made during the hearing of a case, it is clear that the observations were off the cuff, broad-based and often unfairly personal. As stated above, the Supreme Court has itself cautioned the High Courts while making any oral observations, it is unfathomable to ascribe reasons to the observations. To some, they may represent self-perceived moral grandstanding and to some others, it may represent a misplaced moralistic barrage. Without adverting to either of the two, it can be easily stated that there was scant legal or judicial basis behind the said oral observations which represents an unfortunate position.

As far as the factual issues are concerned, the observations are particularly startling to some as has been discussed on public forums that the statement of the litigant is largely borrowed from resources in the public domain [religious scriptures, articles by scholars or videos by TV personalities]. It was arguable that from religious scholars to clerics to saints and written down religious scriptures, the statement of the litigant before the Court was prima facie justifiable. Some have referred to the observations as “pseudo-secular” or Shariaesque in nature. This critique may be unfair as it is safe to assume that any genuine Sharia Court would have, at the very least, conducted a factual and religious analysis of the religious scripture itself before passing any comment – something which was dearly missing in the present oral comments. In some ways, it is interesting to guess if the Petitioner would have been better placed to get relief before a Sharia Court.

In the daily news cycle of tweets and reactions, it is incumbent upon the Court to function as an institution in a fearless and fair manner. While the Court does function in a discretionary manner on the writ side, it cannot function in a whimsical manner. The criminal justice system can appropriately deal with the loose tongues of the common people, politicians or media personalities. However, some other loose tongues remain immune. 

Ayodhra Ram Mandir special coverage by OpIndia

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Nupur J Sharma
Nupur J Sharma
Editor-in-Chief, OpIndia.

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