Several retired judges, bureaucrats and armed forces’ veterans have released a statement seeking recall of the remarks made by a Supreme Court bench on the Nupur Sharma case. In the meantime, Justice JB Pardiwala, one of the judges of the vacation bench which dealt with the Nupur Sharma case, warned that agenda-driven campaigns through social media are adversely impacting matters relating to law and Constitution. As per the SC judge, constructive and critical appraisals of the judgements are permitted in democracy but personalised attacks on judges are harming the judicial institutions and lowering their dignity. He emphasised the need for the law to stop interference in the judicial proceedings. Four important elements of this controversy need to be examined as per the constitutional provisions and apex court judgements.
Oral remarks by SC judges were unwarranted
The Constitution of India gives immense power as well as places onerous responsibilities on the Supreme Court. Open court proceedings ensure that the judiciary is subject to public scrutiny. Judges are expected to act in accordance with law, and also exercise caution while making observations in open courts which may be susceptible to misinterpretation.
While dismissing the petition of suspended BJP spokesperson Nupur Sharma, the Supreme Court bench said that her remarks set the country on fire and she was a threat to the security of the nation. The judges may be right in observing that leaders often resort to controversies to advance their political or nefarious agendas. At the same time, judicial restraint should be exercised while using strong language to criticise any individual or institution. These remarks are also criticised on the ground that it is not reflected in the final two-line order.
Only operative part, i.e. Ratio Decidendi of the judgement, is binding as per Article 141 of the Constitution. While other written statements in the judgement, which are called obiter dicta, are neither authoritative nor binding. However oral remarks are not part of the official court order so it has no judicial value.
Justice DY Chandrachud in the Election Commission of India judgement stated: “Language both on the bench and in judgements, 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.” Those who are criticising oral remarks are of the view that blaming Nupur’s comments could be seen as judicial approval for the violent protests, arson and gruesome murder of a tailor in Rajasthan. Despite no judicial value, critics add, these observations can be further used for mobilising the radical and terror impulse.
Nupur Sharma’s prayer for clubbing of FIRs
Nupur Sharma has made ‘derogatory remarks’ about the Prophet but later she issued an apology and withdrew her statements. Her supporters are justifying the remarks on the ground that it was in response to objectionable remarks by the rival panellists in a TV debate. Despite that several FIRs were registered against her in many states. Her petition seeking a transfer of all cases to a court in Delhi was dismissed by the Supreme Court with many oral remarks.
Article 20(2) of the Constitution guarantees the right against double jeopardy by which a person cannot be prosecuted more than once for the same offence. In a judgement delivered in 2001, the Supreme Court held that there cannot be a second FIR on the same issue. The apex court in the case of Arnab Goswami in 2020 expanded this ruling and said that similar FIRs in different police stations on the same ground against the same person, also violate the fundamental rights of a person. Many such judgements were binding on the Supreme Court bench hearing the Nupur Sharma petition. The bench, however, dismissed the petition with strong oral remarks. Oral remarks are not part of the official judicial record, and therefore, the question of expunging them does not arise. However, a Review Application can still be explored by Nupur Sharma with a prayer of clubbing all FIRs in different states in the same matter.
Challenges of regulating social media
A courtroom is a public space and the principle of open justice requires that the court should do nothing to discourage fair and accurate reporting of the proceedings. The diversity of judicial background brings polytonality in judgements and has enriched our jurisprudence for over seven decades since Independence.
As per a Supreme Court judgement in 1992, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. However, it is presumed that live reporting of court proceedings does not pose a danger of interference to the administration of justice.
In September 2009, the Supreme Court Bench of Justice Deepak Gupta expressed serious concern over the misuse of social media platforms and said that technology has taken a dangerous turn. It directed the Central government to file a reply within three weeks and issue the guidelines to curb the misuse of social media in the country. Subsequently, the government notified the IT (Intermediary) Rules 2021 and a new draft was circulated with four amendments. As per these rules, social media platforms are supposed to place a Nodal Officer, a Compliance Officer and a Grievance Officer in India. However, the grievance redressal system is not working, as is evident from this controversy and various other instances.
Removal of defamatory social media posts
After the Udaipur incident, the Ministry of Electronics and Information Technology (MeitY) directed all social media companies to “proactively and immediately” remove all content that encourages, glorifies or justifies the recent Udaipur murder in order to restore public peace and harmony. In October 2020, the Andhra Pradesh High Court directed the CBI to investigate comments against the court and judges. The CBI lodged several FIRs and arrested persons who were allegedly behind these posts and comments. YouTube and many other social media platforms removed all the URLs given by the CBI regarding the offensive posts. However, Twitter posts could still be seen outside the country. When the High Court Chief Justice took serious note of the matter, then all such posts were removed by social media platforms in India and abroad.
In January 2022 Chief Justice of India NV Ramana said that a judge sitting on the bench couldn’t defend himself against any motivated attacks. Justice Pardiwala stated that India could not be classified as a completely mature and informed democracy. It is worrisome when people who possess half-truths start scrutinising the judicial process, thus crossing the Lakshman Rekha. Many persons are asking for contempt action, but the same may not be feasible in such a targeted and trending social media campaign.
Due to such controversies the court is in danger of undermining its position. Verbal remarks of the judges even if of no judicial value will prejudice the defence of Nupur Sharma before the trial court. To end this controversy, the apex court may pass a judicial order in the review petition or suo motu proceedings with clarification that the oral observation does not constitute a part of the record. After that the Supreme Court or the Central government may direct social media platforms to remove all objectionable posts which are interfering with the administration of justice.
Virag Gupta is a columnist and advocate. He can be followed @viraggupta. The views expressed in this article are those of the author and do not represent the stand of this publication.
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