Is the passing reference made by the apex court in the Nupur Sharma case proving to be a remedy worse than the malady? “If judicial review means anything, it means that judicial restraint does not allow everything.” This insightful statement of Don Willet, reputed judge of the American Court of Appeal, seems to be a prophetic assessment of the state of the Indian judiciary. Considered then and still the bulwark of justice and fair play, the Indian judicial system, at times, nurtures loose cannons much to the chagrin of the learned judges and the man on the street. Offering the proverbial stitch in time, the President of India Shri Ramnath Kovind had to remind the judicial fraternity, ”Indiscreet remarks, even made with good intentions, give room for dubious interpretations”.
Judges themselves committing contempt of court are not unknown though rare in judicial history. It is not time to forget the case of Justice Karnan of Calcutta High Court who was sentenced to imprisonment for six months on the charge of contempt of court.
Judiciary itself rising to the occasion as the saviour of the court’s dignity and objectivity is a great saving grace of the Indian judicial system. “All the rights secured to the citizens under constitution are worth nothing and a mere bubble, except when guaranteed to them by an independent and virtuous judiciary,” says Andrew Jackson, the former President of United States.
Concepts and postulates apart, any system is evaluated by the common man on the time tested axiom, ‘proof of the pudding is in the eating’. A bewildered public received with alarm, the passing reference of the vacation bench of the Supreme Court of India in the Nupur Sharma case. The court has held her as the one responsible for setting the nation on fire. The Judges faulted her for ‘irresponsible statements without thinking of the ramifications and consequences that it will have on the fabric of society ‘. The court observed in unambiguous terms, “She should have immediately apologised for her comments to the whole country.” The court also came to the conclusion “she actually has a loose tongue and has made all kinds of irresponsible statements on TV”. The most unkindest cut of all on Nupur is the court’s observation that she has “set the entire country on fire”. In the backdrop of the gruesome murder of tailor Kanhaiya Lal in Udaipur, the court’s observation appears to be an implied approval of the act of manslaughter. “This lady is single handedly responsible for what is happening in this country,“ is the anvil ding, which came from the vacation bench. The confused citizenry is raising a few questions.
- Does not the rule of law enjoin upon the Judge, the mandatory grant of an opportunity of being heard, to the offender. Has Nupur Sharma been given this opportunity before pronouncing her as the mother of all mayhem, in the aftermath of her TV statement?
- Without any specific complaint before it, has not the court held her as the offender and punished her as the one responsible for setting the country on fire. The punishment suggested for her is loud and clear, apologise to the whole country. The man on the street is asking: Can the prosecutor and the judge be one and the same?
- Will any court she approaches give her a fair deal in the light of the hard hitting observations of the apex court? Like the crowd in Shakespeare’s Julius Caesar, the common man in India, is also saying, ‘we shall be satisfied, let us be satisfied’.
Who can satisfy the inquisitive minds of the common man, who are at a loss to understand the cause and justification of the scathing observations of the Hon’ble Supreme Court? Judiciary has time and again proved ‘where there is a will, there is a way ‘. The judiciary also has an inbuilt system for spring cleaning and internal cleansing. The nation witnessed four judges of the apex court themselves telling their brethren, this much and no further.
Justices Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan Lokur held a press conference and pulled up the then Chief Justice for the glaring irregularities in the administration of the Apex Court. They had written a letter to the Chief Justice, pointing out certain lapses and improprieties which called for immediate corrective measures. Ironically, the Justices did not get justice from their Chief Justice. Justice Chelameswar is on record: ”We are convinced that unless corrective steps are taken immediately, the judiciary will lose its tag, an essential hallmark of the vibrant democracy .“ As John Marshall observes, ”What is that makes us trust our judges? Their independence in office and manner of appointment. “
The sinister implications of the passing observations of the two judges should disturb any sensitive soul. Is the court approving retaliatory violence by unruly mobs on the basis of an ’irresponsible’ statement made by an individual? Does it mean that the law and order machinery and the Constitution will cease to be operative at the slightest provocation by a loquacious person?
The plea of Nupur was to club all the FIR’s against her, in various states and bring the matter for consideration of the court, in Delhi. The reason for this was the threat to her life. When this request was denied by the court and the violence which happened in the country, in the recent past , was ignored or impliedly endorsed , does the court mean that she does not deserve security to her life or she should fend for herself. Is it not a denial of the fundamental right of life? Is the court abdicating its right and duty to defend the citizen’s fundamental right to life? Is the court leaving the right to decide on religious disputes to the fanatics or the lumpen proletariat? This may even open up avenues of avengers from Pakistan and Bangladesh, infiltrating into India to commit heinous crimes in the name of religion. Remember, India does not have a fool-proof registry of its citizens .Is the court turning a blind eye towards the constitutional right for freedom of expression. Article 19 of the Constitution clearly lays down, all citizens have a right to freedom of expression. Are we going away from the fundamentals of judicial prudence in this country?
Separation of powers is sacrosanct to the democratic framework of Bharat. The Executive, the Legislature and the Judiciary should ensure that they keep themselves within the limits. Every public functionary, including the judges, is accountable to the people. It is ‘we the people’, who gave the constitution to ‘ourselves’. Therefore, no institution under democracy can do whatever it likes. Bharat will respect what the Judiciary does, not whatever it does. With the judiciary in the dock, the common man can only say, ‘physician heal thyself’.
Judges themselves committing contempt of court is not unknown though rare in judicial history. It is not time to forget the case of Justice Karnan of Calcutta High Court who was sentenced to imprisonment for six months on the charge of contempt of court
Here is Francis Bacon, himself a judge, on the qualities of a good judge, said “Judges ought to be more leaned than witty, more reverent than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”
The nation expects the highest dignity, decorum, and poise from the honourable Judges. The nation is ready to honour them, if they decide to be honourable. It should never be like what Alexander Pope laments, ”Hungry judges soon the sentence sign, and wretches hang that jury men may dine .”
Chanakya’s prescription for the judges still holds good,”It is the power of punishment alone when exercised impartially in proportion to the guilt, and irrespective of whether the person punished is the King’s son or an enemy, that protects this world and the next.”