Is judicial over-reach justified? – Vivek Gumaste

Chief Justice N.V. Ramana & Justice Surya Kant

Vivek V. GumasteThe Supreme Court is also not above the law and its judges must weigh their words carefully before making remarks that can endanger one’s life – Vivek Gumaste

While responding to a plea petition filed by the embattled Nupur Sharma (the ex-BJP spokesperson in the eye of a storm for making controversial remarks that have hurt a community and facing several death threats) seeking transfer of all FIRs filed against her to Delhi, Justice Surya Kant made some remarks that not only violate the spirit and letter of the law but just don’t seem right coming from a Supreme Court judge.

At the outset, his honour surmised: “The way she has ignited emotions across the country. This lady is single-handedly responsible for what is happening in the country. … She and her loose tongue have set the entire country on fire.”

Even a layperson is aware that a person is deemed innocent until proven guilty by a fair trial. In this case, the honourable judge has pre-empted the whole process and passed a judgment of guilt even before a trial. Such unverified charges can be a part of an opposition leader’s rhetoric, but cannot find a place in the vocabulary of a learned judge.

The Supreme Court also said that her outburst was responsible for the unfortunate incident at Udaipur, where a tailor was murdered.

First, it is a cold-blooded murder. Murder cannot be justified  whatever the provocation. By his remarks, Justice Surya Kant has not only fed into the frenzy of rabid religious fundamentalism, but inadvertently granted a modicum of legal sanction to the death threats swirling in the air. The decision to refuse relief to Nupur Sharma flies in the face of judicial precedence. When this was pointed out by the defense counsel citing the Arnab Goswami vs Union of India case (2020), the court countered that Goswami being a journalist was privy to relief while Nupur Sharma was not.

That rationale does not pass muster as the SC unequivocally indicated in that case that the Constitution guarantees the same free speech rights to all citizens and not journalists alone: “But to allow a journalist to be subjected to multiple complaints and to the pursuit of remedies traversing multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation has a stifling effect on the exercise of that freedom. … Our decisions hold that the right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express.”

The vacation bench finally summed up its decision by claiming “if the conscience of the Court is not satisfied, the law can be moulded”.

Can a judge’s conscience overrule the Constitution?

And by this decision, the SC has intentionally increased Nupur Sharma’s vulnerability. In a civilized, democratic society even a serial killer is not left to the mercies of a mob to be lynched. Rather uncaringly the Justice also remarked: She has (a) threat or she has become a security threat?

In summary, the Honourable Justice has flouted a basic tenet of justice that holds a person innocent until proven guilty, jeopardized a fair trial, flouted judicial precedence, and obliquely justified a murder.

Speaking at an event in San Francisco, Chief Justice of India N.V. Ramana recently averred: “As we celebrate 75th year of Independence this year … we still haven’t learned to appreciate wholly the roles and responsibilities assigned by the Constitution to each of the institutions. The party in power believes that every governmental action is entitled to judicial endorsement. The opposition parties expect the judiciary to advance their political positions and causes. … It is the vigorously promoted ignorance among the general public which is coming to the aid of such forces whose only aim is to run down the only independent organ. i.e., the judiciary. Let me make it clear. We are answerable to the Constitution and Constitution alone,”

True, the Supreme Court is answerable to the Constitution and Constitution alone. But the Constitution does not give anyone including an Supreme Court judge a right to dub a person guilty without a fair trial or mitigate a barbaric crime. Justice Surya Kant has erred. He has crossed the Lakshman Rekha.

The Supreme Court of India is the only institution that even in these trying times continues to be respected, revered, and held in awe by all Indians. To maintain the decorum and credibility of the Supreme Court and above all to protect our democracy, Justice Surya Kant must retract his words. – The Pioneer, 22 July 2022

Disclaimer: This article is not about the merits or demerits of what Nupur Sharma said.

Vivek Gumaste a US-based academic and political commentator.

Riyaz attacked Kanhaiya Lal with a knife while the other recorded the crime on his mobile phone.

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