The Bar Reacts To Remarks By Judges About Nupur Sharma

The Supreme Court today made a very controversial remark while hearing the plea of Nupur Sharma seeking transfer and consolidation of the FIRs registered against her across the Country.

The Bench of Justice Surya Kant and Justice J. B. Pardiwala today remarked that the outburst by Nupur Sharma (alleged blasphemous remarks) was responsible for the incident of Udaipur where a tailor was beheaded. The Bench also said that Nupur Sharma should have apologised to the nation and that she is single-handedly responsible for what happened in the country, referring to the riots that happened in different parts of the country against her remarks.

The case before the Court was dismissed as withdrawn "with liberty to avail alternate remedy available under the law". However, the oral remarks by the Bench during the hearing have led to a huge uproar.

Here is what the Bar has to say on what transpired in Court today:-

"Unwarranted": Senior Advocate Aman Lekhi

Senior Advocate and former Additional Solicitor General in Supreme Court said, "The Supreme Court's oral observations stating that Nupur is exclusively responsible for the situation defies reality. Hate mongering is not limited to one community. As far as the prayer for consolidation of cases against her is concerned, the principle of unity of causes for being decided in one forum applies, and her case was well-founded."

He also said that "Nupur through her lawyer in withdrawing the petition, made a mistake. Instead, she should have invited the Order".

"In any case, the observations made by the Court are totally unwarranted", he said.

"Tentative Observations": Senior Advocate Mohan Katarki

Senior Advocate Mohan Katarki said, "During the course of hearing of any matter, the judges engage with counsel. They don't maintain sphinx-like silence. While engaging with counsel, it's natural for judges to open up and make observations and suggestions. The question of expunging observations, even if unjustified or irrelevant, shouldn't arise since these remarks are tentative observations."

He also said that "The Supreme Court is a constitutional court. It has all the powers and authority to speak what appeals to its judicial conscience".

"Moreover, it was open to the counsel for Nupur to reply and even protest if the observations were unjustified or irrelevant", he added.

"Beyond the Brief": Senior Advocate K. Rama Kumar

Senior Advocate K. Rama Kumar said, "In my humble opinion, the judges of the Supreme Court were going beyond the brief before them. In pronouncing on the merits of the case, suggesting that the petitioner for a transfer is already guilty of the offence."

Reacting with strong words, he said, "This is unheard of in the Indian judiciary. The Supreme Court has been reminding all judges of maintaining sobriety and balance in their observation even in written judgments. This is all the more so when observations are made particularly in the presence of media who are likely to mislead the statement and create a bad impression."

"Accordingly to me, this has intensely affected the dignity and prestige of the Court", he added.

"Justifiably Admonished": Senior Advocate Vivek Sood

Senior Advocate Vivek Sood said, "In my view, the Supreme Court has justifiably admonished Nupur Sharma. This sends the correct signal to people not to indulge in passing such derogatory remarks against any religion. The Apex Court is not only the final adjudicator of legal disputes but also has a duty to ensure that Constitutional morality is maintained in the country".

"Oral Observations Do Not Mean Anything": Senior Advocate Sukumar Pattjoshi

Senior Advocate Sukumar Pattjoshi feels that oral remarks need not be discussed. He said, "Oral observations do not mean anything. They are not the verdict. Many things come in oral observations. Under what circumstance things were said, we don't know since we were not in court. The journalists sometimes report out of proportion. It is very difficult to opine. Oral observations do not call for any opinion. They are not judgments."

"Prejudged the Issue": Monika Arora, Advocate

Monika Arora said, "Whatever Supreme Court has observed is not binding, it's only an observation. But having said so, these remarks prejudge the case before them. The idea of India is enshrined in the Constitution of India and it has Article 19 which gives the right to freedom of speech with reasonable restriction. The Constitution also provides for a fair trial. A person has the freedom of speech and if anybody is hurt by the exercise of that freedom, they can always approach the court of law. Thereafter, the person has to face a trial. After having a fair hearing, he is either acquitted or he is convicted."

"Remarks at this time by the Supreme Court, the Court is supreme in India, prejudge the whole issue. With these remarks, there is an apprehension about whether she will get a fair trial or not. The case before the Court was that all the FIRs have to be clubbed together and a trial has to take in a particular state. Courts could not have gone into the merits of the case. Without hearing the complainant on merit, the accused person on merit, the trial taking place, and evidence being led, we cannot prejudge the issue", she added.

"Apology Not Enough": Kartik Seth: Advocate Supreme Court Of India and Managing Partner, Chambers of Kartik Seth, an AOR firm in Supreme Court

Kartik Seth Managing Partner of AOR firm in Supreme Court said, "An apology is not enough from a lady who has incited violence across the country. She should clearly be booked under Section 295 A and Section 505 (c)".

"Deeply Worrying": Prashant Padmanabhan, AoR

Prashant Padmanabha had this to say:

"The oral observations of the Hon'ble Supreme Court, as widely reported in the media in Nupur Sharma's case today are deeply worrying for several reasons.

(i) In similar instances where multiple FIRs are filed across the country, the Supreme Court has clubbed all those FIRs and ordered trial at one place. The same precedent ought to have been resorted to in this case as well, considering the threat perception to Nupur Sharma. Instead, the oral observations from the Hon'ble Court might make her, more vulnerable to attacks.

(ii) The SC has ignored its own earlier dictum (Three Judge's Bench) about the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the IPC. (W.P.(Crl.) No.217/2021) It arose out of a criminal proceeding initiated against two Telugu news channels, TV5; and (ii) ABN.

A Bench of Justices D.Y. Chandrachud, L. Nageswara Rao, S. Ravindra Bhat while passing the Order on 31.05.2021 held:

"We are of the view that the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation".

(iii) The oral observations regarding 'the business of TV channel to discuss matters which are sub judice', run counter to the Constitution Bench judgment of the Supreme Court in Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603 wherein it was observed:

"Open justice permits fair and accurate reports of court proceedings to be published. The media has a right to know what is happening in courts and to disseminate the information to the public which enhances the public confidence in the transparency of court proceedings". (para 35)

As the great proponent of free speech, Prof.Timothy Garton Ash puts it, "We respect the believer but not necessarily the content of the belief".

Looking from any angle, today's Order of the Hon'ble Supreme Court in Nupur Sharma's case does not seem to meet the legal yardstick."

"Really Disappointing": Advocate Naresh Reddy

Advocate Naresh Reddy said thus:

"To my knowledge, several crimes have been registered in different states against Nupur Sharma about her comments on Prophet Mohammed. It seems she had approached the Supreme Court seeking to club all FIRs registered against her in several states, as all those arise out of one cause of action.

It is really disappointing that the Apex Court while hearing her case, has passed a comment that Nupur Sharma is responsible for the Udaipur incident, that too without her facing the trial and her guilt being proven.

Whether the comments made by Sharma against Prophet Mohammad are criminal in nature or offensive is yet to be proved. The investigation is not yet complete. While the investigation is pending, the trial has not started and her guilty has not been proven, it is unfortunate that the Apex Court made such comments. It is also unfortunate for the Court to become prejudiced and to comment that she has committed an offence.

Nupur Sharma is only the accused and until proven guilty, she must be deemed to be innocent. The Apex Court is deciding the matter regarding the clubbing of the FIRs and not a criminal appeal on the issue of Nupur Sharma's innocence or guilt. Earlier, the Court had interfered when Arnab Goswami knocked on its door in almost similar circumstances."