#JudicialOverActivism: Crossing the Laxman Rekha

At no point of time in the post-independent judicial history of India had there been such a nation-wide mass-scale reaction and outcry when the sitting judges of the Supreme Court, Justice Surya Kant and Justice J B Pardiwalla sermonised on the Nupur Sharma episode (while refusing to consider her petition for clubbing together the multiple FIRs lodged against her all over the country).

Amid the unprecedented outbursts of these judges, they categorically yelled: “Nupur Sharma with her loose tongue is single handedly responsible for what is happening in the country, including Udaipur beheading of a tailor this week for allegedly sharing her remarks”.

These outbursts and unwarranted remarks, uttered without any legal basis or observing any well-established practices and procedures pertaining to adjudication, raises the following frightening questions in the minds of the law-abiding, peace-loving citizens of India, professing Hinduism, which were gleaned at random from these millions of social media postings erupted since the date of the outbursts:

• Are these judges presiding over a Sharia Court in a Muslim country or a court constituted under the constitution of democratic India?
• There is not even an iota of untruth in whatever Nupur Sharma uttered during the democratic debate in question. In fact, the truthfulness of her remarks made during the debate was validated by international authorities on Islam, including the Islamic scholar, Dr Zakir Naik. Hence did these Judges throw out the motto of Indian judiciary, viz. “Satyameva Jayathe”?
• Nupur Sharma made her remarks not in isolation but only when faced by outrageous provocation regarding the religion professed by her as well as the majority citizens of India, the propriety of which was promptly admitted by Islamic scholars from across the border, viz. Pakistan, as per the social media video clips. Hence the question is whether the statutory provisions of the criminal jurisprudence on “provocation” is not available to Nupur Sharma or cannot be appreciated by these judges?
• According to the judges, does opposing participant in the debate in question, who professes a foreign originated religion, enjoy immunity from making any insulting/disparaging remarks against the religion professed by Nupur Sharma as well as by the majority citizens of India?
• On what grounds the judges burst out against Sharma by alleging that it was only Nupur Sharma who is “single-handedly responsible for setting the country on fire”?
• The fundamental legal principle on which adjudication is commenced in courts of law in any democratic country is known as “cause of action”. The term cause of action as defined under the Civil Procedure Code is “… a bundle of facts which allow a person to establish his or her legal rights against another…”. When this being the basic tenets of adjudication, the million dollar question is: “What did the Apex Court Judges mean when they repeatedly uttered: “Nupur Sharma is single handedly responsible for the …. beheading of an unarmed innocent tailor…” ?
• The fundamental criminal law doctrine of “presumption of innocence until proved guilty” was thrown into the dustbin by the Apex Court Judges when the fact remains that none of the courts of law in India, where multiple cases were lodged against her, has yet proved Nupur Sharma guilty of any offence.
• Unlike the Sharia Law, wherein the doctrine of mens rea (guilty intention) is totally absent, in Indian law the said doctrine is paramount in considering the gravity of an offence allegedly committed by any citizen. By watching the debate in question Nupur Sharma has had not even an iota of guilty intention (mens rea) by uttering the words in question, which were purely out of sudden and aggressive provocation made by the other party to the debate. This is all the more bizarre and strange on the part of the judges when viewed from the perspective that her words were nothing but unvarnished truth, as certified by all the world-renowned Islamic scholars, including Dr Zakir Naik, who has dedicated his life for the cause of Islam, and was awarded the highest religious title by Saudi Arabia along with a mountain of monetary reward for his unstinted efforts in spreading Islam in India.
• Do Their Lordships consider both uttering of words out of provocation is same as that of beheading of an innocent unarmed citizen of India? Does it not amount to “taking Sharia law in one’s own hands for perpetrating a gruesome crime of beheading of an Indian citizen through treachery and deception by way of creating friendliness of a customer (of the murdered tailor), which is known under Holy Quran as “Al-Taqquiya” (Sura 3 Ayat 28)?
• The judges have reportedly posed a query: “Why is she freely moving and not yet arrested”? This query goes to the very root of the human rights as guaranteed to citizens under the Constitution of India. The entire citizens of India and even a child, except the foot-soldiers acting for international Jihadis, know that the multiple FIRs lodged across the country against Sharma are only by the Jihadi/Sharia elements and not even a single person professing secular values and democratic credentials to which the Jihadi elements have no faith. By filing FIRs by these Jihadi elements through the democratic process of the country, in which they do not have any faith of whatsoever nature as it is opposed to their foreign-originated faith, viz. Sharia, it is only they who force their writ upon the peace-loving law-abiding citizens of the country, whom they regard as infidels. And yet the judges are anxious to bow down to the Jihadi demands.
• There is yet another very serious angle to the query posed by the judges, viz. “Why is she freely moving and not yet arrested”? This query goes not only to the very root of human rights as guaranteed to any Indian citizen under the constitution but also to the root of right to equality, right to freedom to move fearlessly across the country, etc. As the words spoken by Nupur Sharma were triggered only out of disparaging provocation made by her opposing debate member and even a child in India knows that she has not committed any offence of whatsoever nature. Are these judges extremely cruel by not considering the reality that this young unmarried lady cannot move freely across the country in attending to the hearings of multiple FIRs filed on false and frivolous grounds without exposing herself into greatest danger and risks to her life? Hence, where is the question of arresting her upon multiple FIRs filed on false and frivolous grounds, as demanded by the judges?

One of the outbursts made by the judges is: “……She should have gone to the TV and apologized to the nation”. The million dollar question is: “Is such a demand applicable to only to the Hindu citizens of the country and not to the Muslims”? There are thousands of most heinous crimes perpetrated by the Muslim minorities of the country against the majority citizens. Two instances out of such large number of cases are briefly described below:

(i) In the recent past an incident pertaining to the debate in question occurred. The accused, whose physical appearance resembled to that of the killers of the tailor, made a video showing a mock beheading of Nupur Sharma and uploaded it on social media. The video showed the accused severing the head of a look-alike woman and then he held the severed head in one hand and in the other hand he held the blood-oozing clever/sword. He was arrested by the police and brought before a magistrate who instantly granted him bail. It took not more than 10 minutes for the Advocate of the accused to argue on bail application.

(ii) When Akbaruddin Owaisi, the Hyderabad based Muslim fundamentalist declared at a largely attended public event to the effect that: “if police force are away just for fifteen minutes the Muslims in India could easily eliminate the Hindu infidels”. To this nation-wide telecast threat, nobody has filed any FIR against him and when the police suo moto filed case against him, it was heard by a High Court judge, who let him free by passing a judgment to the effect: “The speech does not amount to hate speech.”

Thus, in short, all the Muslim criminals are handled by the Indian judiciary with kid gloves, at the cost of grave threat, dangers and risks to the life and liberty of the Hindu citizens and there is no question of the Judges asking them: “to go to TV and apologise to the nation”.

Multiple FIRs were lodged exclusively by the Jihadi/Sharia elements of India with international support from Muslim countries. When Nupur Sharma’s application came up before Their Lordships for clubbing together all these multiple FIRs and place them before a single court, her Advocate vehemently argued for over a couple of hours showing exemplarily clear that there is a serious threat to her life if she keeps moving from one State to another for appearing before various courts. However, Their Lordships were not only even slightly satisfied by the arguments but also out-rightly rejected her application, refusing to grant any relief of whatsoever nature. This could be for the first time in the history of Indian judiciary that it has bowed down to the demands of the Jihaadi/Sharia elements and refused to hear the rightful secular and democratic prayers of a young unmarried lady and exposing her into grave dangers and risks from the internationally marauding Islamic forces. Judging from the whole outbursts and remarks of the judges coupled with their body language, it would be exemplarily clear that whole “concern” for the judges was: “Nupur Sharma is a spokesperson of BJP”.

The above-quoted frightening questions were garnered out of millions of postings flooded in the social media ever since the outbursts of the Judges. Only very few of the same are taken at random and quoted above.

The conduct of the Apex Court Judges shows that the Apex Court regards the majority citizens only as “second class citizens”, not deserving any rights as guaranteed to them under the Constitution. Their unwarranted and atrocious outbursts without any rhyme or reason have serious country-wide repercussions, particularly for the life, liberty and property of the majority citizens of the country, whose lives without the freedom of expression and without the right of self-defense have now become extremely dangerous and risky, a few of which are briefly discussed below:

At the outset, no sooner than the outburst of the judges came to the public domain than it had become a cause for celebration for all the anti-nationals, anti-Hindus, foot-soldiers working at the behest of their foreign masters who are rank enemies of infidels of India, international Jihadi elements clandestinely living in India, etc.

Owaisi started addressing his Jihadi followers to take up street activism to free the killers of the Rajasthan tailor from the clutches of the “man-made laws”. Similarly the Congress leader, Rahul Gandhi, thanked both the Judges and called up an emergency meeting with all the stakeholders of the erstwhile dynasty rulers, welcoming the utterances of the Apex Court Judges and finding faults with the present Prime Minister of the country and repeating his usual jib: “Chowkidaar Chor Hey”.

Nobody professing Hinduism can any more freely move about in the country, leave alone the question of the much abused “freedom of expression”, which can only be enjoyed by the minority Jihadi elements of the country against the majority citizens.

The Hindus will now be left with no other alternatives but to take up law into their own hands for saving themselves, their family members as well as their property in India from the world-wide Jihadi attacks. There are over 57 Islamic countries in the world many of whom have already involved in the Nupur Sharma episode who have now been emboldened in attacking the infidels of India in retribution for a truthful isolated remarks made by an Indian citizen purely out of provocation in a democratic debate.

Needless to mention here that the only citizens in India abiding the law of the land as well as the Judgments, orders and directions delivered by the courts of law are undoubtedly the Hindu citizens. And yet, a pal of gloom, a climate of fear, mutual suspicions amongst the citizens of different religions, etc. have now engulfed India. None of the Hindu citizens of the country would have any confidence upon the judiciary hence forth which would lead to total anarchy across the country.

In the US, the Judges of all courts of law, particularly the Supreme Court are nominated by the President and confirmed by the Senate (which in India is called “Parliament”). Diametrically opposed to this system prevailing in the USA and the other democratic countries in India the appointment of the Judges are done through a mechanism, called ‘Collegiums System”. Successive Nehru Dynasty governments since independence took advantages of this system and through corruption and nepotism selected Judges.

A careful analysis one can discern that almost 80 per cent of the present day Judges at the Apex Court are products of the erstwhile Dynasty Governments. This was the reason that for the first time in the judicial history of India after the first-time-ever nationalistic government assumed power, a gang of four senior Supreme Court Judges walked out of their plush government-allotted accommodation and staged a street “Dharna” to the great chagrin of street dwellers, hawkers, mendicants, etc., which was purely on suspicion upon the newly  elected government.

The concept of separation of power is part and parcel of democracy. This separation of powers refers to a system of sharing of powers into Branches, each with separate, independent powers and responsibilities in such a way that the powers of one Branch are not in conflict with those of the other Branches.

It is pertinent to state here that ever since the first ever nationalistic Government came to power, all these past “Congress Government Appointed Judges” started exercising their power far beyond the scope and limit assigned to them without any care of the Government. They have not only encroached upon/usurped the jurisdiction of the present Government but also started creating stumbling blocks in smoothly governing the country. Law and order problems emanating from the illogical judgments and outbursts of these judges are the major concern for the present Government.

Unlike the Western democratic countries India cannot afford to treat the divisions as “water-tight compartment” due to various unique social circumstances peculiar to India. There are increasing instances of serious affronts made by the judiciary against the present democratically elected Government, enjoying absolute majority, by way of frequent interference in the government function, delivering illogical and impracticable judgments, frequent confrontation with the Government authorities, etc., are the present state of affairs with the Indian judiciary.

As mentioned above, the aforesaid conduct of the Apex Court Judges tantamount to serious assault upon the present government. Hence for maintaining law and order situations across the country, which is in the exclusive domain of the Central Government, the foreseeable days are going to be extremely dangerous and risky in tackling those problems involving attack against the Hindus by the Jihadi elements, emboldened by the unwarranted outbursts. The present Government came to power with absolute majority on the mandate of the patriotic citizens. If their confidence in the judiciary is shattered by these types of Judges, it would lead to serious repercussions for the Government to function.

Hence when a Government is elected to power with absolute majority, such government should have the prerogative in hiring and firing the Judges. The system of impeachment of the Judges in the USA is very effective which is not practicable in India on account of various negative forces at play. Moreover, in the US there are time-tested stringent measures and Codes of Ethics to discipline and control the judiciary by the Government, which are totally absent here.

In many of the democratic countries the judges do not have immunity from law suit and other legal proceedings and in constitutional democracies judicial misconduct or bad personal behavior is not protected. It is therefore high time for Indian government to sack the aforesaid Judges without looking into the consequences of the same but for saving the country from turmoil conflagration.

Allowing the aforesaid Judges in occupying their positions in the belief that they enjoy immunity from removal would be a serious threat to Indian democracy and will put the country into potential turmoil, increased instance of Jihadi attacks and violence upon the majority citizens, total loss of confidence in the decisions of the courts, etc.

Hence it is for the lager interest of saving India from disintegration and settling anarchy that these two Judges should be sacked forthwith, which will have full support from the entire right thinking electorates of India.