The Loud Sentinel

THE SUPREME COURT’S strange remarks, in which it blamed Nupur Sharma for the brutal murder of Kanhaiya Lal at the hands of funda­mentalist elements, were difficult to reconcile with the well-established norms of judicial conduct and discipline. Almost all comments made by the apex court were easily avoidable and call for inculcating in our judges a culture of restraint in exercise of judicial functions. For these obvious reasons, the observations made by the bench while rejecting her petition to transfer the pan-India FIRs lodged against her have been met with almost universal condemnation from retired judges, the legal profession and civil society.

However, besides going too far with its oral remarks, the court also made stray observations regarding the inapplicability of Arnab Goswami’s case and the distinction between a journal­ist and a political spokesperson in denying any relief to Nupur Sharma. In my opinion, these observations merit discussion because they seek to limit the protection afforded to ordinary citizens by Article 19(1)(a) of the Constitution by creating an artificial distinction between the freedom of speech extended to journalists and to ordinary citizens. Such a distinction has no basis in our free speech jurisprudence.

A straightforward reading of Article 19(1)(a) reveals that the Indian Constitution makes no distinction between the freedom of expression guaranteed to a common citizen and the freedom of expression guaranteed to a journalist. A textual reading of Article 19(1)(a) thus provides no constitutional basis for giving journalists preferential treatment over other citizens in terms of freedom of speech and expression. Notably, the drafting history of Article 19 also supports this textual interpretation of Article 19(1)(a) and would be better understood by reference to the Constituent Assembly (CA) debates.

When Article 19 (Draft Article 13) was taken up for consider­ation by the CA, several members had voiced their concerns about the omission of any explicit protection regarding press freedom. While dealing with the specific concerns regarding the omission of an express guarantee of press freedom and why there was no need to have an express constitutional mention to that effect, BR Ambedkar underscored that there is no qualitative difference between the freedom of expression enjoyed by the press and other citizens. In this regard, he noted as follows:

“Now, the only point which I had noted down to which I had thought of making some reference in the course of my reply was the point made by my friend, Professor K. T. Shah, that the fundamental rights do not speak of the freedom of the press. The reply given by my friend, Mr. Anantha­sayanam Ayyangar, in my judgment is a complete reply. The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary of the freedom of the press at all.”

Thus, the text and its drafting history are quite self-revealing and leave no room for relegating a citizen’s freedom of speech to a category which is inferior in comparison to press and jour­nalistic freedom. In other words, every citizen’s speech and ex­pression is afforded the same degree and level of constitutional protection as the press or a journalist. When the observations of the court are tested on the touchstone of our constitutional text and drafting history, it becomes clear that there is no support to be found for them.

Notably, the pre-Constitution position is also similar, and Ambedkar’s view that there is no distinction between the free­dom of speech of the press and that of citizens is consistent with the position advocated by the Privy Council in Channing Arnold vs The Emperor. In the Arnold’s case, the Privy Council noted that no special privileges pertaining to freedom of speech can be reserved for the press and observed:

“Their Lordships regret to find that there appeared on the one side in this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute-law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than that of any other subject. No privilege attaches to his position.”

In the post-Constitution era, the dictum laid down in Arnold’s case was affirmed by the Supreme Court in Pandit M.S.M. Sharma vs Sri Krishna Sinha, where the court traced the Indian legal history pertaining to freedom of the press and held as follows:

“Prior to the advent of our present Constitution, there was no consti­tutional or statutory enunciation of the freedom of speech of the subjects or the liberty of the Press. Even in the famous Proclamation of Queen Victoria made in 1858 after the British power was firmly established in India, there was no reference to the freedom of speech or the liberty of the Press, although it was announced that “none be in any wise favoured, none molested or disquieted by reason of their Religious Faith or Obser­vances; but that all shall alike enjoy the equal and impartial protection of the law….” Indeed during the British period of our history the Press as such had no higher or better rights than the individual citizen….”

After quoting the relevant extracts regarding the equal status enjoyed by the press and individual citizens from Arnold’s case, the court further held that (emphases added):

“It will be noticed that this Article guarantees to all citizens freedom of speech and expression but does not specifically or separately provide for liberty of the Press. It has, however, been held that the liberty of the Press is implicit in the freedom of speech and expression which is conferred on a citizen. Thus, in Romesh Thappar v. State of Madras [(1950) SCR 594] this Court has held that freedom of speech and expression includes the freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. In Brijbhushan v. State of Delhi [(1950) SCR 605] it has been laid down by this Court that the imposition of precen­sorship on a journal is a restriction on the liberty of the Press which is an essential part of the right to freedom of speech and expression declared by Article 19(1)(a). To the like effect are the observations of Bhagwati, J. who, in delivering the unanimous judgment of this Court in Express Newspaper Ltd. v. Union of India [AIR (1958) SC 578] said at p. 614 that freedom of speech and expression includes within its scope the free­dom of the Press. Two things should be noticed. A non-citizen running a newspaper is not entitled to the fundamental right to freedom of speech and expression and, therefore, cannot claim, as his fundamental right, the benefit of the liberty of the Press. Further, being only a right flowing from the freedom of speech and expression, the liberty of the Press in India stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the Press as such, that is to say, as distinct from the freedom of the citizen. In short, as regards citizens running a newspaper the position under our Constitution is the same as it was when the Judicial Commit­tee decided the case of Arnold v. The King Emperor [(1914) LR 41 IA 149] and as regards non-citizens the po­sition may even be worse.”

The Court had the option to transfer subsequent FIRs to a single police station and treat the information stated in the transferred FIRs as statements under Section 162 of the Code of Criminal Procedure. This would have struck a fine balance between Nupur Sharma’s rights under Articles 14, 19 and 21 and the interest of the state in prosecuting a cognisable offence

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The aforesaid legal position is now well-entrenched in our free speech jurisprudence, which the court seems to have ignored when it denied relief to Nupur Sharma. There was no good reason for the court to dismiss Nupur Sharma’s plea and not extend to her the same relief it granted to Arnab Goswami. In fact, a closer look at the judgment in Arnab Goswami’s case would show that the court was mindful of the position that the Constitu­tion accords no special protection to a journalist in comparison to other citizens under Article 19(1)(a) when it quashed subsequent FIRs against Goswami. According to the court, its intervention was required to protect Goswami’s rights under Article 14 not only because he was a journalist but also because he was a citizen. Thus, the distinction sought to be created by the court in Nupur Sharma’s case was wholly unnecessary and irrelevant. The distinction was without any valid differentia and not germane to the issues at hand. The court could have proceeded to adjudge the case on its own merit based on the principles it has established regarding the valid­ity of subsequent FIRs arising out of the same incident or transferred the investigation to a single state by exercising its powers under Article 32 of the Constitution.

Apart from the wafer-thin distinction drawn by the court to reject Sharma’s plea, there is also no precedential support in limit­ing the benefit of the Supreme Court’s discretionary jurisdiction under Article 32 to quash FIRs and transfer investigations only to a special class of people, such as journalists. On at least seven occa­sions (Vijay Shekhar and Another vs Union of India and Others; Rini Johar and Another vs State of Madhya Pradesh and Others; Monica Ku­mar and Another vs State of Uttar Pradesh and Others; Priya Prakash Varrier and Others vs State of Telangana and Another; Laxmibai Chan­daragi B. and Another vs State of Karnataka and Others), all of which did not involve any journalist, the Supreme Court has invoked its ju­risdiction under Article 32 of the Constitution to quash FIRs, which either did not disclose any offence or constituted a complete abuse of process. It was on the strength of these cases that the Supreme Court later quashed the FIR lodged against Vinod Dua—a journalist by profes­sion—under Sections 124A, 501 and 505 of the Indian Penal Code (IPC) by invoking its powers under Article 32 of the Constitution. It seems totally strange for the court to now reverse-engineer the entire jurisprudence regarding the invocation of Article 32 to quash FIRs and limit its appli­cation by using flimsy distinctions. A narrow approach, such as this, is in direct contradiction to the liberal invocation and application of the power in a string of earlier cases.

APART FROM NUPUR Shar­ma’s prayer to quash the FIRs, the Supreme Court also did not pay any heed to the relief she had sought through transferring various FIRs lodged against her in multiple states to a single police station. In this re­gard, Namit Saxena rightly posits that there is little doubt about the existence of this power vested in the Supreme Court in the exercise of its writ jurisdiction. In fact, this power was exercised by the court in Amish Devgan’s case wherein it had observed that Devgan had acted like a co-participant and not simply a mere host. How is the case of Nu­pur Sharma, who participated in a television debate on a news channel, any different? Were the circum­stances of Sharma’s case so funda­mentally different from those of Devgan’s that a summary dismissal was warranted? Practically, there is no material difference between the two cases and the Supreme Court could have exercised its power and discretion without any hesitation.

Judicial restraint requires the court to refrain from making negative comments when conducting transfer adjudication in criminal cases. The underlying rationale is straightforward: adverse observations of the court have the potential to undermine a person’s right to a fair trial

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Keeping in mind that the inves­tigation into the various FIRs filed against Nupur Sharma might be in its initial stage and a judicial inter­vention to quash such FIRs might be premature, the court had the option of resorting to the ratio laid down in the TT Antony and Amish Devgan cases and transfer subsequent FIRs to a single police station and treat the information stated in the transferred FIRs as statements under Section 162 of the Code of Criminal Procedure, 1973. This would have struck a fine balance between Nupur Sharma’s rights under Articles 14, 19 and 21 and the in­terest of the state in prosecuting a cognisable offence. However, nothing seemed to have swayed the court to invoke its powers under Article 32 of the Constitution—neither the strength of precedence nor the glaring threat Sharma faces to her life and safety. Instead of focusing on the issues at hand, the court went overboard and indicted the Bharatiya Janata Party (BJP) spokes­person and her remarks for the killing carried out by the members of a particular community and rendered an oral declaration of her guilt. While they were just oral observations, which do not form part of the judicial record, they still fly in the face of settled case law pertaining to speech-related religious offences which have held that the fanatical actions of a religious community cannot determine the nature of the act. The court seems to have forgotten the old adage, “Offence is taken, not given”.

As stated earlier, the court’s observations also contradict no­tions of judicial restraint that require the judiciary to refrain from making negative comments or observations when conducting transfer adjudication in criminal cases. Apart from jurisdictional considerations, the underlying rationale for exercising restraint is straightforward: adverse comments or observations of the Su­preme Court have the potential to undermine a person’s right to a fair trial. Even in cases where the Supreme Court refused to quash an FIR, it fairly stated that its observations were not an ex­pression of its opinion on the merits of the case. Take for instance, the following observations of the Supreme Court in the Amish Devgan case:

“Having given our careful and in-depth consideration, we do not think it would be appropriate at this stage to quash the FIRs and thus stall the investigation into all the relevant aspects. However, our observations on the factual matrix of the present case in this decision should not in any manner influence the investigation by the police who shall independently apply their mind and ascertain the true and correct facts, on all material and rel­evant aspects. Similarly, the competent authority would independently apply its mind in case the police authorities seek sanction, and to decide, whether or not to grant the same. Same would be the position in case charge-sheet is filed. The court would apply its mind whether or not to take cognisance and issue sum­mons. By an interim order, the petitioner has enjoyed protection against coercive steps arising out of and relating to the program telecast on 15.06.2020. Sub­ject to the petitioner cooperating in the investigation, we direct that no coercive steps for arrest of the petitioner need be taken by the police during investigation. In case and if charge-sheet is filed, the court would examine the question of grant of bail without being influenced by these directions as well as any findings of fact recorded in this judgment.”

The quoted observations are clear evidence of a balanced ju­dicial approach tempered by caution and restraint even when the court has seen no reason to grant relief to a person facing criminal prosecution. Maintaining this balance is imperative as the Supreme Court is bestowed with a constitutional authority in our democracy and, as a result, its observations are bound to carry some unofficial weight and influence. In Nupur Sharma’s case, however, the court jettisoned this approach to read her the riot act, which got widely reported in various sections of the me­dia. Its remarks disregarded its own practice and the standards of judicial conduct developed in other mature jurisdictions, which require that judges are “conscious of the harm that may be done to a person criticized in public judicial remarks, whether orally in court or in written decisions”.

That apart, the Supreme Court enjoys a great degree of social capital by virtue of its constitutional and official authority. It plays a great role in shaping public perception and opinion about the most intricate and controversial socio-political issues affecting our polity. The observations of the apex court that Nupur Sharma is singlehandedly responsible for the trouble that has ensued in the country offer an extremely tenuous basis to the offended to outrage and shift the moral responsibility of the Udaipur killing from the real culprits to Nupur Sharma.

While the manner in which the court proceeded to conduct the hearing is regretful, the unnecessary commentary from the apex court is a textbook example of “overreach and transgression”. If open threats to the constitutional guarantees of life and liberty promised to a person are not exceptional and enough to satisfy the ‘conscience’ of our Supreme Court—“the Sentinel on the Qui Vive”—nothing else can.

About The Author

Sarthak Raizada

Sarthak Raizada is an advocate at the Supreme Court of India

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