Controversial remarks not part of vacation bench’s order

A fit case of judicial accountability getting ignored

By K Raveendran

It is all very well that the petition moved by former BJP spokesperson Nupur Sharma for combining all the FIRs registered against her in different parts of the country for her offending remarks about Prophet Mohammed has been dismissed by a Supreme Court vacation bench in a two-line order.
It goes a long way to protect the credibility of the highest court of the land that some of the highly emotional remarks made by the judges during the hearing of the petition are not part of the final order.
According to the established law, delivered in a judgment by a regular bench of the Supreme Court, comprising Justices D Y Chandrachud and M R Shah, the remarks made by judges are not part of the judicial records and therefore do not matter.
In fact, Justice Chandrachud’s bench had expressed strongly against remarks made by judges during hearing being taken as the final word. The bench went to the extent of saying that judicial accountability is lost where oral regimes prevail and emphasised that the judges should speak through their judgments and orders and not through oral directions. ‘The written order is what is binding and enforceable’.
The bench issued the important ruling in a petition by the Election Commission challenging a remark made by the Madras High Court that a case of murder must be registered against the commission for causing covid to surge by allowing elections to take place in four states and one union territory.
While there is no doubt that the remarks made by Nupur Sharma in a television channel debate about Gyanvapi mosque were by all means revolting to the nation’s collective conscience, some of the oral remarks made by the vacation bench, comprising Justices Surya Kant and JB Pardiwala, appeared to have strayed from the line of judicial accountability into highly subjective emotional responses.
Already, demands have surfaced for the withdrawal of some of the observations, which media units all over the country have celebrated with gay abandon, bringing serious setback to the Indian government’s bid to calm nerves of important partners in the Arab Muslim world over the highly damaging remarks made by the now sacked BJP spokesperson. Chief Justice N V Ramana has been approached for the withdrawal of ‘uncalled for’ remarks by the vacation bench. A letter to this effect went to the extent of alleging that the judges’ remarks linking Sharma’s comment with the beheading of Kanhaiya Lal in Udaipur justified the brutal act and amounted to giving clean chit to the killers.
The judges seemed to have been carried away by the protests against Nupur Sharma’s remarks to the extent of refusing to apply uniform standards to her petition, in the process straying into areas that were not related even remotely. When it was pointed out on behalf of the former BJP leader, facing national and international wrath, that there is precedent of FIRs being combined as had happened in the case of Republic Arnab Goswami, since she is fearing physical danger to herself, the judges said Arnab Goswami was a journalist and such privileges are not available to a party spokesperson. The vacation bench judges seemed to have overlooked to the fact that the laws applicable to a journalist are the same as those that may be applied to any other citizen.
Even more objectionable was the questioning by the judges of Nupur Sharma’s alleged ‘arrogance’ in approaching the Supreme Court directly rather than going to a magistrate. A court has to go by the law of the land and decide the matter before it accordingly.
If the petition is fit to be allowed, it should be allowed and if it deserved to be rejected it should be done so on the basis of the applicable law and there is no need to go into the state of mind of the petitioner, except when that particular state of mind itself is the main consideration. The judges clearly exceeded their brief in this.
The bench questioning television debates on issues that are sub-judice is also out of sync with the reality in which every second issue in public life is these days pending consideration of one court or the other. Going by the vacation bench’s logic, the current developments in Maharashtra should be a strictly no-go for the media as the Shiv Sena rebel MLAs’ case is before the Supreme Court and promises to be there for some more time. Surely, it does not build up a case for journalists to go on vacation! (IPA Service)

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