On July 1, the collective conscience of the people of India received a shocker from the topmost Judiciary when the 2 Judge Vacation Bench comprising Justice Surya Kant and Justice J B Pardiwala happened to step out of the revered protocol of the Judiciary behaving a way unexpected of them. Unnerving the people of India, the two revered Judges displayed some extra-judicial power the Constitution didn’t prescribe for them. Viewing it as a whole from the perspective of a common conscious citizen, it appeared necessary to recall the very fact that high seats of power are high as they rest upon the shoulders of more than 100 crores. Judges’ assumption of such high seats for utterance of personal bias warrants due criticism as per stipulated format in order to conserve the aura of reverence around the high seats of judiciary.
Nupur Sharma’s counsel, Senior Advocate Maninder Singh appealed to the Supreme Court to merge in one all the FIRs (around 50)lodged against her all over India in relation to the Prophet Row and bringing them to Delhi. The vacation bench, in an unprecedented manner, not only refused to serve justice to Sharma but also came down heavily upon her. Justice Surya Kant spontaneously made all those observations for which the Judges were neither equipped nor empowered. Bharat witnessed the blunt refusal of justice by her top Court.
On July 5, eminent citizens comprising former judges, government officials, and officers from the armed forces, in their letter to the Chief Justice of India, asked “for the roster of Justice Surya Kant to be withdrawn until he attains superannuation and at least be directed to withdraw the remarks and observations made during the hearing of the Nupur Sharma case. ”The eminent citizens of India apprehended that the Judicial Institution of India had been violated as the recent comments by the two Judges “surpassed the Laxman Rekha”.
While Judiciary is supposed to reprimand petitioners or respondents in cases aptly placed before them, Justice Surya Kant sounded like a Shariah Court while he stated Nupur Sharma herself turned “a security threat” as she “has ignited emotions across the country”& was “single handedly responsible for what is happening in the country.” Any stronger words expressing apprehensions about the Judiciary could hardly be put in black and white than what the concerned citizens wrote under section 7 of their letter to the CJI. “…Forcing a petitioner by such damning observations, pronouncing her guilty without trial, and denial of access to justice on issue raised in the petition, can never be a facet of a democratic society. ”This indeed appeared the key point as Justice Surya Kant didn’t in any manner sound like a democratic judiciary. While PM Modi reiterates even on global platforms that Bharatvarsha is the mother of democracy, Justice Surya Kant’s words, by creating the impact of a FATWA on Nupur Sharma, flashed a glimpse of the antithesis of democracy. As his words sounded like a ‘Fatwa’ that gelled well with the present “sar tan se juda” environment of India, the soul of Bharat was shaken. From time immemorial, democratic ethos across ages got transmitted almost into the genes of Bharatiyas. Justice Surya Kant’s comments posed antagonism to such psyche.
While Tasleem Rahmani’s terrible vituperation against the Kashi Gyanvapi Shivling traumatised the soul of Hindutva, Hindus neither chose to hit the streets in protest or to retaliate by killing people. Carrying forward their civilizational principles, Hindus preferred to go the legal way in case of Kashi Gyanvapi adhering to the judicial dictate regarding the same. Such inherent dedication to democratic ethos is one of the core values of India that, in a way, got reprimanded by Justice Surya Kant when he liked to selectively rebuke Nupur Sharma. Justice Surya Kant didn’t like to note Tasleem Rahmani’s spontaneous calumniation of Gyanvapi Shivling, which happened to be the point of inception of the conflicting argument while Nupur Sharma’s expressions came as spontaneous repercussions thereof. While Justice Kant chose not to allot due weightage to the point of inception & focused solely upon the repercussion, Justice Pardiwala said “…public opinion has to be subordinate to rule of law.” Such unexplained dichotomy displayed by the judiciary took a toll on public psyche.
The only sensible part of Justice Kant’s uncalled for personal observation was that he addressed Nupur Sharma “was incited”. However, he stated “Don’t make us open our mouth”, to sound as if unaware of the fact that people approach the judiciary to make Judges open their mouths. Petitioners appeal to listen to them only regarding concerning petitions and not on topics not placed before them. This could either be due to judicial ‘incapacity’ (evaluation whereof warrants sincere adherence to the stipulations as per Article 124 of the Constitution) or some underlying pathology best known to himself and/or his Physician.
Justice Surya Kant stated that they “saw the debate on how she (Nupur Sharma) was incited”. The 2 Judge bench, however, liked not to note how Tasleem Rahmani vanished from the picture in spite of providing gruesome incitement that ended up in a retaliation from Nupur Sharma. Justice Kant liked not to find it important to note the ‘clout’ of Rahmani. He didn’t like to note how the outraged Islamic mob across India held Nupur Sharma all accountable in a way as if Rahmani was never present in the debate. Instead of descrying their clout, Justice Surya Kant noted the so-called ‘clout’ of Nupur Sharma who, in spite of being one representing the ‘power’ of India, was receiving death threats one after another. Justice Kant’s words reverberated those of the outraging Islamists who were violating the basic tenets of the Constitution as well as democracy itself. “sar tan se juda” is anything but Bharat.
Apart from denying justice to Nupur Sharma which only Supreme Court could provide her, the Vacation Bench verbally denied Sharma her fundamental rights as under Article 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 19 (Freedom of speech and expression)and Article 21 (Freedom of life and personal liberty) of the Constitution of India. Only the empowered body through the stipulated process could mark such an unfortunate perspective as judicial incapacity.
While the majority of India continued to stand bewildered not to know the real reason behind Justice Kant’s uncalled-for observations on issues not before the Court, Vice Chancellor of Nalsar Law University, Hyderabad came to know about it by some unknown mechanism. In his op-ed in The Indian Express, VC of Nalsar University, Faizan Mustafa wrote on July 5, “Last week, Justice Surya Kant and Justice J B Pardiwala made scathing observations against ex-BJP spokesperson Nupur Sharma for speaking against the Prophet. Justice Surya Kant blamed her for the tragic killing in Udaipur. Unfortunately, the remarks of the judges have drawn criticism, though their real intention was merely to end the controversy, improve our international image and give a much-needed healing touch to the Muslims.” Faizan Mustafa knew the real reason behind Justice Surya Kant’s uncalled for observations against Nupur Sharma was to “…give a much-needed healing touch to the Muslims.” Even before the case appeared before the top court to be decided whether Sharma truly spoke against the Prophet, VC, Nalsar deduced, perhaps by some mysterious mode of thought-reading, that the Judges slammed Nupur Sharma“ for speaking against the Prophet.” Mechanism of such awareness of Judges’ minds appeared novel & beyond common people’s reach. If ‘contempt of court’ would be taken in true spirit, such statement of VC Nalsar had the potential to be dragged for contempt. However, Indian law is not strong enough & is full of loopholes consisting of self-contradictions. While a specific community is not hesitating to render terror-calls and kill people in different parts of the country, they require not “Healing touch” but judicious retaliation of law. India doesn’t have such updated penal code suitable to cater to the present needs of the country.
Kerala Governor Arif Mahammad Khan said that ‘India’s culture does not consider anybody as other.’ “Our tradition is not tolerance, but respect and acceptance for all traditions. We respect and we accept all traditions as true. India’s culture does not consider anybody as others,” the Governor said. While Kerala Governor’s statement precisely described the Hindu psyche, it implied why blasphemy was philosophically incongruent with such psyche. While Justice Surya Kant, stepping out of his judicial scope, took to comment so much against Nupur Sharma, he didn’t like to add a simple assertion that calls like “sar tan se juda” was infructuous in India as blasphemy was a conceptual impossibility in this ancient land of Vedas.
Though law didn’t permit any room to the Vacation Bench to make “personal comments” against Nupur Sharma except in matters under judicial review, Justice Surya Kant still did so. As the people of India, out of grave shock, criticized the Vacation Bench for such comments, Justice J. B. Pardiwala issued stern criticism against “personal attacks upon Judges” by the social media. On July 3, Justice Pardiwala said, “Personal attacks on judges for their judgements lead to a dangerous scenario where judges have to think about what the media thinks instead of what the law really thinks.” This apparent dichotomy was apprehended by the social media as attempts by the 2 Judges to rise above law. However, ex-Justice S N Dhingra unambiguously stated that Supreme Court was not above the law. So says the Constitution of India, keeping provisions of impeachment of Supreme Court Judges under Article 124.
Justice Pardiwala also added that social media needed to be regulated as “… social media is employed frequently to politicise purely legal and constitutional issues.” While he raised concern about social media’s vulnerability to make mistakes in discussing legal and constitutional issues due to ignorance, the Vacation Bench didn’t consider how many fundamental rights of Nupur Sharma were verbally denied by Justice Surya Kant’s personal comments about her. While social media could make mistakes due to ignorance of law and constitution, no reason seemed enough for the Vacation Bench to commit such mistakes.
Justice Pardiwala added that “The role of the judiciary is a pious trust reposed by the people. ”Justice Surya Kant’s remarks against Nupur Sharma, however, betrayed such trust people repose upon the judiciary as those remarks were devoid of statutory sanctity. The Vacation Bench Judges caused extreme agony in the people’s mind by more than one ways. While the Constitution is adopted, enacted & given to themselves by the people of India and Judges are appointed under the same, Judges remain morally answerable to the people, which is the core of Indian democracy. Justice Pardiwala, however, illustrated the necessity to restrain this core itself in expressing their views in social media. Such statements added to the emotional trauma of people in general. Bharatiya are argumentative by natures Bharat’s democracy dates back at least to the time of 16 MAHAJANAPADAS of which Lichchavi was a democracy. PM Modi recently referred to this fact in one of his speeches in Bihar. If such argumentative orientation of Bharatiya psyche turn out to be the bone of contention of the Indian judiciary, it hardly seems reflective of good health of the latter.
[DISCLAIMER: The views expressed are solely of the author and does not necessarily subscribe to it]