In a genuine democracy, the legislature, the executive and the judiciary, with mutual check and balances, are traditionally considered as three distinct and most important organs or pillars of the government. Of this the legislature is responsible for making laws, the executive in entrusted to execute and implement these laws while the judiciary is the ultimate body that interprets legality and efficacy of laws besides dealing with the specific cases of the breach of such laws. In the recent years, many people have frequently started quoting the independent media also as the fourth pillar of democracy. While the first two organs often invite public controversy and are many a time considered biased, being based on certain political and socio-economic ideologies, but the people at large put high trust, stake and hope on judiciary for the fair dealing and justice commensurate with fundamentals of the Constitution and laws of the land. But during the last several years, there have been cases in India suggestive of negative ‘judicial activism’ and bad in the eyes of law, the outcome of which put a serious dent and question marks if everything is alright with the Indian judiciary, and more so with the apex court itself.

There is a woman who is officially entrusted to represent a political party on a contentious religious debate and barbs are exchanged in a heated debate by the rival guests of two different faiths. Now, days after the debate, a few interested individuals successfully manage to give an angle to the very debate that the woman intentionally insulted the highly venerated prophet of the particular religion. This leads to a predictable uproar in the Islamic world against India based on the common ethos of the same religion. Consequently, keeping political and economic interests and compulsions on priority, the woman is suspended from her post and primary membership by the political ruling party perhaps to quell the ongoing outrage but she starts getting a plethora of threats for her rape, murder and hanging equally from fanatics, jihadis and religious leaders with many FIRs purportedly lodged against her in different cities. Apprehensive of the threat for life, she now moves the apex court for a relief that all FIRs are of similar nature and shall be clubbed together to be heard in a Delhi court. The two judges of the Supreme Court orally rebuke and hold her squarely responsible for the outrage in country, and instead of listening to her plea and safety concerns, they summarily dismiss her petition.

Judicial handling of Nupur Sharma’s Petition

This started with a private television channel in India telecasted a live debate during the last week of May 2022 on a controversial issue of the Kashi-Viswanath Temple and Gyanvapi Mosque at Varabnasi, Uttar Pradesh. As two rival (Muslim) guests constantly kept addressing the Shivalinga recently found in the premises during a court mandated survey as a fountain in a sarcastic and mocking tone, the lady spokesperson of the ruling Bhartiya Janta Party (BJP), Nupur Sharma, got provoked and quoted a few things from the holy Quran and Hadiths which inter alia contained a reference to Prophet Muhammad’s marriage with Aisha. Although the debate was concluded without inviting much acrimony or controversy but the issue caught public attention after a few days when the AltNews journalist Mohammad Jubair and Washington Post columnist Rana Ayyub selectively escalated a part of debate linking it with the blasphemy. This created a sharp reaction internationally from the Islamic world and violent protests domestically from the Muslim community against Nupur Sharma.

The political party suspended Nupur Sharma from the party post and primary membership pending further investigation but her immediate arrest and prosecution was also demanded by the clergy and common man from the minority community and politicians from the opposition parties. Several protests from different parts of the country were reported involving violence and arson that included murder/beheading of two persons in opposition ruled states of Rajasthan and Maharashtra and similar threats to many others during June 2022. As several criminal cases were filed against Nupur Sharma in various states and the lady was getting constant threats of rape and murder from the radical and jihadi elements, the lady filed a petition in the Supreme Court through a counsel invoking the Article 20(2) of the Indian Constitution with a request that all such pending cases may be clubbed together and heard as one case in a Delhi court in view of the security threats on her life. The said Article 20(2) is about the doctrine against double jeopardy stipulating that no person shall be prosecuted and punished more than once for the same offense subject to certain stipulations.

A bench of the Supreme Court heard her plea on 01 July wherein the two judges came down heavily on Nupur Sharma for her remarks on Prophet Muhammad during the televised debate on 26 May 2022, stating that it was done either for cheap publicity, political agenda or some nefarious activities. They said that she has ignited emotions across the country, her loose tongue has set the entire country on fire, and she is single-handedly responsible for what is now happening in the country. One judge even added that they have seen the debate and the way she said all that was shameful and she should apologize to the whole country on live television. The bench further added that her outburst was responsible for the unfortunate incident in Udaipur, where a tailor was murdered. While making aforesaid oral observations and many more, the two judges refused Ms. Sharma’s plea for the clubbing of FIRs (First Information Repports) lodged in different states against her and summarily dismissed her petition. It's quite obvious that the cause for the dismissal of petition in this case neither originated from the petition, nor any other precedent or settled law on the subject; instead, it was based on the personal opinion or preference of the judges. Hence it may not be exaggeration to say that the apex judiciary has set a new paradigm of the judicial activism through this decision.

Reaction and Response of Civil Society

Needless to mention, the aforesaid action of the Supreme Court bench comprising of two judges also served as a vital doze for the clergy and common man of the particular community, opposition politicians and liberal-intellectuals in India who visualized the episode an opportunity for self promotion in escalating the ongoing controversy and outrage in the country. For instance, the same clergy and politicians started a renewed bid and demand for the immediate arrest of Nupur Sharma citing the view taken by the Supreme Court bench on her petition. Many of them have even tried to justify the outrage in the country citing it as the nemesis of the hate politics of the ruling BJP. At the same time, the initial reports about the NIA (National Investigation Agency) investigation in two murders in Rajasthan and Maharashtra indicated a deeply-hatched conspiracy and sustained hate campaign involving a vast network behind the arson and violence with links in the neighbouring Pakistan which is often charged with the indoctrination and inciting Indian youth to indulge in such crimes for the sake of religion.

Notwithstanding above, the action of two judges of the Supreme Court in this case has triggered a massive reaction on the social media involving intellectuals and common man with many citing it as completely unjustified, unmindful and unfair judgment against the principles of natural justice. Among the most significant is a strongly-worded open letter addressed to the Chief Justice of India (CJI) against the observation made by the bench of Justice Surya Kant and Justice JB Pardiwala while hearing Nupur Sharma's case in the Supreme Court, signatories of which are the civil society members including fifteen judges, seventy-seven former senior bureaucrats and twenty-five senior retired officers of the armed forces. They have summarized various issues and anomalies in 11 points while pointing out in the beginning itself that Nupur Sharma had sought justice from the highest court only competent to grant such relief but the observations of the court have no connect jurisprudentially with the issue raised in her petition. The members feel that the transgression by the court in this case was unprecedented breaching all canons of dispensation of justice, and thereby de facto denying her access to the judiciary, causing an outrage on the preamble, spirit and essence of the Constitution of India.

The concerned members of the civil society hold that the remarks of the two Supreme Court judges are indiscreet, unfortunate and unprecedented. Some of the important signatories are the former chief justice of the Bombay High Court Kshitij Vyas, former Gujarat High Court judge SM Soni, former Rajasthan High Court judges R S Rathore and Prashant Agarwal, former Delhi High Court judge SN Dhingra. former IAS officers RS Gopalan and S Krishna Kumar, former Ambassador Niranjan Desai, former DGPs Nirmal Kaur, SP Vaid, B L Vohra, Mirnal Kanti Das, Lt Gen (Retd) V K Chaturvedi and Air Marshall (Retd) SP Singh, and many others. The open statement said that the remarks from the bench have sent shockwaves in the country and outside, and the unfortunate and unprecedented comments emanating from the two Judge Bench of the Supreme Court - Justice Surya Kant and Justice JB Pardiwala - have no parallel and are indelible scar on the justice system of the largest democracy. If urgent rectification steps are not taken, it will have serious consequences on the democratic values and security of the country.

The open statement also highlighted that the applicant Ms Sharma, by approaching the apex court to club the FIRs registered, had only sought to exercise her fundamental rights against double jeopardy as provided under Article 20(2) of the Constitution because she was facing separate prosecution at many places for the same cause of action. But the Supreme Court rather than safeguarding the fundamental right of the petitioner dismissed her petition asking her to approach the High Court knowing fully well that the latter court does not have jurisdiction to transfer or club the FIRs registered in other states. Thus the observations made by the Supreme Court bench had no connect jurisprudentially with the issue raised in the petition. Perceptionally, through the observations Nupur Sharma was adjudged with severity guilty in a proceeding where this was not an issue at all. The statement said that by calling Ms. sharma single-handedly responsible for what was happening in the country, there is a virtual exoneration of the dastardliest beheading at Udaipur (Rajasthan) in broad daylight. Such observations of judgmental nature on issues not for consideration before the court, are crucification of the essence and spirit of the Constitution.

While the members of the civil society jointly raised nearly all relevant issues in their open letter to the CJI, a similar criticism and anguish have been expressed by a large number of intellectuals, elites and common man as well in the social, electronic and print media. The essence of all such reactions and responses has been that the judges should have focused on the issue in the petition under consideration; condemning a petitioner, pronouncing her guilty without trial and, thereby, denying access to justice due, cannot be treated as a good decision in law and good omen for a democratic society. Following the criticism and social media outrage, Justice JB Pardiwala too reacted by saying that the personal attacks on judges can lead to a “dangerous scenario” and such attacks make judges ponder about what the media thinks instead of what the law thinks. He observed that the social and digital media is primarily resorted to expressing personalized opinions more against the judges rather than a constructive critical appraisal of their judgments, which is harming the judicial institution and lowering its dignity. While the response of the CJI is yet to be seen on the civil society inputs and another (public interest) petition filed on the subject, the answers of the questions raised by the aforesaid judge lies in their own judicial action and conduct.

Analysis of Legal Issues Involved

Let’s see the sequence of events of the case in the Supreme Court. The lady had appeared before the apex court on the 01 July 2022 to seek relief with simple submission that multiple FIRs have been filed against her for the same cause of action, and she is under the grave threat for her life; hence the FIRs should be clubbed together so that she is not required to travel to different cities in order to cooperate with the investigation. While hearing her plea, the two judge bench surprisingly ignored the violence and hatred unleashed by the radical and jihadi elements all over the country and instead held her single-handedly responsible and accountable for every wrong committed in the country on the pretext of the alleged blasphemy committed by her. Although the counsel dealing with her case mentioned about the classic TT Antony case along with other similar cases of the journalist, businessman, and common citizens, but the judges willy-nilly refused the law and precedents in her case resorting to scathing counter remarks. The fact that they simply refused to apply law, one judge finally observed that his “conscience” was not satisfied and therefore, no relief would be given.

Apart from denying justice and, thereby, putting the life of the lady at risk, the apex court verdict raises serious ethical and legal issues such as should the judges refuse the application of law just because they do not like the person or her/his political ideology. According to reports, when the applicant’s lawyer referred to TT Antony case, the judge asked him to go and approach the High Court if there was a second FIR; when the counsel referred to relief granted by Supreme Court to Arnab Goswami in somewhat similar case, the judge mentioned that the journalists were on a different pedestal; and when the same counsel quoted the case of a businessman granted relief, the judge resorted to his own “conscience” being not satisfied. Stretching the dialogue or debate, through their scathing remarks the two judges even blamed the lady for the beheading of Kanhaiya Lal in Udaipur by Islamists, thus almost exonerating them of culpability while making several other observations which are not commensurate with the need of uniform application of law and natural justice in restoring the fundamental rights of the citizens commensurate with the spirit and mandate in the Constitution.

Let’s understand that multiple FIRs lodged against the lady in various states, mostly ruled by the opposition parties, constitute allegations pertaining to one offence i.e. blasphemy. The Article 20 (2) of the Constitution of India, falling under Part III of Constitution guaranteeing fundamental rights of citizens, prohibits prosecution and punishment more than once for the same offence. While the classic case of TT Anthony vs State of Kerala exists as a paradigm of jurisprudence whereunder there should be no second FIR and consequently there can be no fresh investigation in respect to the second FIR on the same case. In the aforesaid case, the Supreme Court had clearly laid down that any such action (i.e. multiple FIRs) would be violative of the fundamental rights as guaranteed under Article 20(2) of the Constitution of India. Journalist Arnab Goswami was granted relief in 2020 against alleged vindictive action by the Maharashtra government. In yet another case of journalist Rohit Ranjan, the Supreme Court bench comprising of Justice Indira Banerjee and Justice JK Maheshwari have granted the clubbing of FIRs only on 06 July 2022 i.e. five days after the aforesaid judgment, referring to the same TT Antony case, and a categoric ruling that no coercive action will be taken against the journalist.

Well, it is not an issue or question under consideration in the present piece whether someone opposes or supports what Nupur Sharma spoke on live television debate on 26 may 2022. Instead, the issue is when many precedents on the agreed principle of law are available, why should the case of Nupur Sharma as a citizen be treated at a different pedestal denying her justice due? It is the same Supreme Court that has accorded top urgency to hear the cases of convicted criminal even at the midnight with a view to safeguarding their fundamental rights in the past. Some of the points for consideration are flagged in the following paragraphs (even at the cost of repetition). In the opinion of this author, while the lower and subordinate courts can afford an error of jurisprudence, including the interpretation and application of laws, the apex judiciary cannot afford it being the last resort. The apex judiciary certainly needs to carry out introspection and CJI to take cognizance for the course correction commensurate with the enshrined objective and purpose in the Constitution.

1. Upholding Fundamental Rights of Citizen: The examination of any case shall be done without extraneous considerations in the light of principles enshrined in the Constitution, laws of the land and precedents set in the past in similar cases. Article 20(2) of the Constitution stipulates the right against double jeopardy by which a person cannot be prosecuted more than once for the same offence. A precedent was set by a judgment delivered on 12 July 2001 in TT Antony versus the government of Kerala, the Supreme Court upheld that there cannot be a second FIR on the same issue. The Supreme Court further expanded this ruling in the Arnab Goswami case in 2020 upholding that similar FIRs in different police stations on the same offense against the same person, also violate the fundamental rights of a person. Another Supreme Court bench comprised of two different judges on 6 July has favourably decided the case of journalist Rohit Ranjan on similar ground. Notwithstanding several such judgments on record, the Supreme Court bench hearing the Nupur Sharma petition dismissed her case with vicious oral remarks which are not even part of the judicial record. Hence it is indeed a bad case in legal history in that even expunging of the remarks cannot be formally done.

2. Legal Sanctity of Oral Remarks: The Constitution of India has given immense power to the judiciary and Supreme Court in that the latter can even examine the constitutionality and legality of the laws passed by the Parliament but then these powers are not without commensurate responsibility (and accountability?). Hence the judges should act in accordance with the law, and not repeat not in partisan and arbitrary manner based personal opinion or preference. While dismissing the petition of the lady under reference, the Supreme Court bench inter alia said that her remarks set the country on fire and she was a threat to the security of the nation. To some extent, the judges may have a point because many political leaders indeed do things as part of some agenda but they certainly need to be dispassionate and discreet in their observations and averments, and also make sure that all worthwhile submissions having a bearing on the case are recorded in support of the judgment; it should not be case that the individual is orally chastised in the strongly worded language and the case is dismissed in just two-line order.

It is true that only the operative part (i.e. Ratio Decidendi) of the judgment is binding under the Article 141 of Constitution which specifically stipulates that the law declared by the Supreme Court shall be binding on all courts. On the other hand, the other recorded statements, facts and analysis in the judgment (i.e. Obiter Dicta) are de facto considered neither authoritative nor binding on the parties. However, as they constitute part of the court proceedings, they can certainly be referred to and become a cause of action, if so required. On the other hand, the oral remarks being not part of the formal proceedings cannot be pursued or questioned though the severity and implications thereof cannot be denied and could be often far reaching. After all, the same oral remarks of the two judges have been widely quoted and used by the media, opposition leaders and detractors who are after the blood of the lady under reference. Perhaps anticipating this problem and need, Justice DY Chandrachud, in a judgment relating to the Election Commission of India, sometime back had stated, “Language both on the bench and in judgments, must comport with judicial propriety. Judicial language is a window to a conscience sensitive to the constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity.”

3. Legality and Jurisprudence: After the live television debate, when the issue was linked to blasphemy with outrage in the Islamic world, Nupur Sharma had apologized and withdrawn her remarks stating that what she said was in response to objectionable comments by the rival panelists. However, outrage against her remarks continued with the threats of rape and murder, including amputation and severing of her tongue. With the calls of her immediate arrest and prosecution, multiple FIRs were registered against her in the states like Delhi, Maharashtra and West Bengal. Alarmed with her own safety concerns and for the ease of investigation, she sought transfer of all cases in a court in Delhi in her petition to the Supreme Court. However, instead of examining her petition on merit, the bench comprising of two judges simply dismissed her petition resorting to her oral indictment in strong words. The point at issue is how a judge can pass verdict without properly examining the alleged misdemeanor or misconduct of a person, which was not even a subject of the petition under examination in the present case. In doing so, not only the jurisprudence has been compromised but also the fundamental rights have been denied and safety of the life of a citizen compromised.

4. Coping with Social Media Challenges: The intent and essence of the statement of Justice JB Pardiwala appears that the media and common people should avoid public discussion or expression of opinion on the verdict of judges else it may have adverse impact on judicial process in the country. In other words, the judges should be beyond scrutiny because the social media may impinge upon their thought process during judicial scrutiny of the case. There appears to be an inherent contradiction in this averment because the adverse reaction in the social media appeared in this case only after the judges dismissed the lady’s petition by orally lambasting her during the hearing. The remarks passed against the lady were certainly judgmental in nature and, for sure, never examined in any court including this bench before the day of hearing. So what was the credible source or reliable input other than what media escalated, based on which the honourable judges made their own opinion beforehand? The fact is around this time, the media was abuzz with the outrage created through the violence and arson made by the radical and jihadi elements in the country as well as caustic remarks of the Islamic clergy, opposition politicians and some (so-called) liberal-intellectuals. There is no doubt that the advent of social and electronic media in the recent years have created a powerful platform and tools for mass interaction and opinion building which is being both utilized and manipulated by the wise and unsavoury people, respectively. But the Supreme Court judges should certainly not be swayed away with media input and emotions; instead, they are expected to rely on the Constitution and jurisprudence as their key determinates.

Growing Judicial Activism & Impact

In common parlance, the judicial activism is a philosophy which inspires or motivates judges to depart from the traditional outlook and precedents in favour of more progressive and conducive social policies, more particularly when the executive fails in their duty in time for the welfare of the public at large. In other words, when the executive does not take right decisions, the judiciary with powers vested by the Constitution makes necessary ruling to solve the public grievances. But it has both the positive and negative connotations with their favourable and unfavourable impact. The negative aspect of the judicial activism is that out of the sheer zeal and emboldened with the vested powers, the judges may proactively violate or depart from the set precedents and the line drawn by the Constitution, thereby leading to a chaos and confusion rather than solving the problems of public. In such cases, the opinion of the judges tends to become the standard of ruling with judgment influenced by personal choice, preference or even selfish motive. It is this latter mode of the judicial activism which has been a serious cause of concern off late; hence the need for a judicial restraint in that the judges should limit their powers by the Constitution and statutory mandates rather than influencing the proceedings or decision with own preferences and perspectives, as has occurred in the Nupur Sharma case.

The author recalls the term ‘Judicial Activism’ had started gaining strength towards the late 1980s and remained a talking point of considerable concern through the 1990s. In the recent years too, the Indian judiciary has often been criticized in public for the hyper ‘judicial activism’ though with considerable restraints due to the sensitivities involved, including the possible risk of the contempt of court. In fact, there was an unprecedented occurrence in January 2017 when four senior most judges, who were also member of the Supreme Court Collegium, publicly participated in a press conference to express their differences and anguish against the then Chief Justice of India Dipak Misra, the episode then considered no less than a catastrophe in the Indian judicial history by many legal experts and former judges. The CJI was mainly criticized (for implied bias) in the context of the master of roster in assigning cases to the benches, delay in finalization of the memorandum of procedures (MOP) for the appointment of judges, and so on. It is believed that at least one of the dissenting members in Collegium was of view that the exclusion of the executive from the selection process was against the basic spirit of the Constitution that provides for the checks and balances for a healthy democratic functioning of all organs of the government. Later it transpired that it was more of a result of personal rivalries and ego clashes but for the basic flaws in the functioning of the apex judiciary i.e. the lack of transparency and inherent arbitrariness in the matters of appointment, assignment of cases and running of the administration.

Following the aforesaid flare up, an attempt was also made by the Congress led opposition to initiate the impeachment proceedings against the CJI but the move fell through due to lack of the requisite substance in allegations and members’ strength in the Parliament. However, the episode exposed the inherent defects and weaknesses of the sanctum sanctorum of the judiciary in the country. The issues included the elements of arbitrariness, secrecy and lack of trust within the walls of judiciary that talks so much about the transparency, propriety, and freedom of speech and expression in public life. The issue of discriminatory allotment of benches itself suggested the existence of lobbies and ideologies even in treatment of court cases indicative of risk about infirmity and vulnerability of the jurisprudence. Things have not changed a bit is evident from the fact that two different benches decide two similar cases differently in a week’s time in July 2022: In the first case of Nupur Sharma of BJP having an additional risk for life too, the two judge bench refused the clubbing of FIRs by summarily dismissing the petition ignoring the precedents and settled law on the subject, while in other case of journalist Rohit Ranjan, another two judge bench granted clubbing of FIRs based on the same precedents and settled law on the subject.

It’s not that the aforesaid problems of the judiciary are not known. In fact, even some retired judges have complained and highlighted the widespread innuendos of institutionalized groupism, favourism, nepotism and ego clashes, etc. in higher judiciary. Efforts have been made at the central government level in the past for the judicial reforms which have been scuttled or struck down none other than the apex judiciary itself. One important issue relates to the appointment of the judges in the High Courts and Supreme Court. India has a unique system in the country where the higher judiciary appoints itself in the name of independence and undue interference from the government (executive). After a few developments, the Supreme Court had decided in 1992 that the judiciary’s independence could be maintained only if they take the process of appointments for themselves. Consequently, a Collegium was constituted comprising of the Chief Justice and two senior most judges (now four) in 1993 to take over the work from the government. However, ever since its inception, the Collegium system too has invited controversies for the lack of transparency and arbritrariness from time to time.

Hence in 2015, the Parliament passed the National Judicial Appointments Commission (NJAC) Act to replace the Collegium System making necessary changes to the process of appointment of judges. In the revised procedure, 50% members were from the Supreme Court with the CJI to chair the Commission thus retaining the supremacy of the apex court in the matter. This law was, however, struck down by the Supreme Court through a judgment from a Constitutional bench on the ground that it violated judicial independence. Thus the Supreme Court did not even accept a system which while dispensing with its sole authority yet allowed it to have maximum say retaining the pre-eminence of the judiciary. After a long tussle between the government and Supreme Court, only a memorandum of procedure (MOP) for the Collegium could be finalized which does not allow any substantive say to the central government in the process of appointment. The present government too on their part appears to avoid direct conflict with the determined judiciary in such matters.

When the subjectivity prevails, the objectivity is an obvious casualty. The absence of proper checks and balances invariably makes a system prone to mal-functioning that may, at times, even put the very society at risk. Precisely that is the case when a lady goes to the apex judiciary for a relief highlighting the position of law as well as her own impending risk for life at the hands of jihadis. In a healthy democracy, one may not need worry much about stray unsuitable appointment(s) but when the same individual is required to interpret laws and principles enshrined in the Constitution and in the process his ignorance or arrogance and arbitrariness takes a heavy toll in the form of a bad judgment, this leads to a double jeopardy in denying justice to the individual as well as inflicting ill repute to the judiciary. The issues of arbitrariness, coherent jurisprudence, careful contemplation of admissible issues and minimization of the discretion element in higher judiciary is possible only through commensurate reforms, which so far the apex judiciary itself has resisted and stalled on various grounds. At the moment, one could only visualize and hope for the revival and review of the NAJC or a far more comprehensive law like a Supreme Court Act with due agreement and consultation with the apex court and other stakeholders.

Epilogue

The negative facet of the judicial activism is a cause of concern not only in the largest democracy like India but also in other democracies including the oldest one like the United States. India is not the only sufferer, the recent US Supreme Court rulings about the handgun law and the right to abortion too have sent a widespread shockwaves in America so much so that the US President himself was constrained to state that the ruling (about possession of gun) was “not just reckless, it’s reprehensible.” The Indian constitution empowers the Supreme Court to evaluate legal validity, interpretation and implementation of the laws passed by the parliament i.e. the combined action of the legislature and executive. At the same time, the judiciary is also enshrined with the responsibility to function in a manner so as to ensure and safeguard the fundamental rights and freedom of the citizens by providing fair and equitable justice. In such a scenario, the need of hour for the judges is to decide cases in public interest based on the constitutional provisions, statutory mandates and precedents instead of being driven by own opinion, preferences and perspectives. As the judges are not entrusted with policy-making, they should go by the legislative intent, settled precedents (stare decicis) and scrupulous judicial interpretation of laws. In other words, more than the judicial activism, they need to exercise judicial restraint.

Images (C) istock.com