Protector of the Constitution

The doctrine of Stare Decisis is an important legal principle. It is well settled in India, by interpreting appropriately Article-141. In simple language ‘Binding Precedent’ means the judgments pronounced by Hon. Supreme Court shall be binding on all High Courts and their subordinate courts. It sounds very well to everybody, including the legal fraternity, but we cannot forget and overlook the ‘Judicial Activism’.

What is ‘Judicial Activism’ after all? The Judicial Activism is defined as ‘A Philosophy of administering justice, whereby judges allow their personal views about public policy, ignoring precedents.’ [Page-979 of R Ramanatha Aiyar’s The Law Lexicon – The Encyclopaedic Law Dictionary, Fourth Edition – 2017, Edited by Shakil Ahmad Khan, Published by LexisNexis]

Democracy pre-supposes the adoption, internalizing and respecting the ‘Separation of Powers’. This term was coined by Charles-Louis de Secondat, baron de La Brede et de Montesquieu, 18th century French Social & Political philosopher. His publication, ‘Spirit of the Laws’ is considered one of the greatest works in the history of political theory and jurisprudence. It has inspired the Declaration of the Rights of Man and the Constitution of United States (USA). Under this model, the political authority of the State is divided into Legislature, Executive and Judicial powers. He asserted that to most effectively promote liberty; these three powers must be separate and acting independently. [National Conference of State Legislature, Washington / Denver, USA (NCSL)].

Now, I want to draw the attention of readers to Article 20 of our Constitution, of which verbatim is produced below:

Article – 20: Protection in respect of conviction for offences:

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3)  No person accused of any offence shall be compelled to be a witness against himself.

Hereinabove, sub-clause (1) & (2) are for giving the effect to meaningful life, as is expected in Article 21, namely, Right to Life. And, right to life means and includes life to live with dignity. Hon. Supreme Court very rightly respected this, in Aruna Shanbaug vs. Union of India & Ors., 1996 AIR SC 81 case (Right to Die with Dignity); then why not to live a life with dignity.

There is one universal Latin phrase ‘Audi Alteram Parte’, which means ‘Nobody should be condemned unheard’. This is an important principle from Principles of Natural Justice. Even in domestic enquiries, this is adhered to, but what has been done by Hon. Supreme Court is perplexing and shocking, in a Transfer Petition filed by Adv. Ms. Nupur Sharma,

There are almost nine First Information Reports (FIRs) filed against her, in different cities in different states in the country, for her allegedly contemptuous mentions in television debate about Prophet Muhammad Paigambar, which, in fact, has been endorsed by Muslim scholars as a fact. Whether it is contemptuous and hurting the religious feelings is a question to be decided by the competent court. There is no second opinion about it. But the crucial question coming to my mind is who is supreme? Is it Hon. Supreme Court or the Constitution of India?

As understood by me, the answer is ‘Constitution’, and if it is so, whether the Hon. Supreme Court can transgress its boundaries and act in contravention of the constitutional provisions? Simple and plain language of Article 14, unambiguously, states that all are equal before the law. No court is supposed to go beyond the made by the competent legislature and legislate even by remote way. It is alright, if it makes certain statements in its ‘speaking order’, for elucidating the reasons for arriving at a particular decision; because then, it will form the essence and can be termed as ‘ratio decidendi’, which will be binding on all courts Article 141 of the Constitution. Hon. Supreme Court or High Court may make some statements, which are not essential for arriving at that particular judgment, which are called as ‘obiter dictum’. It may be followed or not depending upon the facts of each case. However, the statements which are not even remotely connected, relevant and necessary for the case before the court, need not be followed, and the judges deciding the case can instead follow the decision of concerned high court.  

Article-20 guarantees every citizen, a protection from conviction, as well as ‘Double Jeopardy’. On this background, let us look at the matter under reference, of Adv. Ms. Nupur Sharma.

She has approached to Hon. Supreme Court requesting to transfer multiple FIRs filed against her at different places, under Section 406 of the Criminal Procedure Code, 1908, read with Article-21 and Article-32 of the Constitution. Hon. Supreme Court directed her to approach High Court for that request. I failed to understand as to how High Court can direct magisterial courts under the jurisdiction of another High Court, under Section 407 of Criminal Procedure Code. As per this section, High Court does not have the power and authority to interfere with the subordinate courts, out of its territorial jurisdiction.

However, the most disturbing thing is when Hon. Supreme Court did not want to hear her Transfer Petition, it could have simply advised her to do that and that’s it; but  aghast! Unwarrantedly, it went beyond and made caustic remarks, which even otherwise, could not be referred to as either ‘Ratio dendi’ or ‘Obiter Dictum’, under Article 141 referred above, because court did not heard the petition at all; on the contrary, it declined to do so.

Ms. Nupur Sharma’s request, it appears was not for quashing those multiple FIRs by issuance the Writ of Certiorari (Certiorari means quashing.), but for just transferring those all FIRs to some competent court in New Delhi. To my mind, the said remarks and direction to apologize is convicting her without a legal and valid trial, which is guaranteed by the Constitution. The Constitution is superior to even Hon. Supreme Court. How Supreme Court can condemn her unheard? Her trial was not going on before the Supreme Court and therefore, the remarks passed were uncalled for and asking her to apologies on television to whole nation is strange, because Supreme Court has not heard her petition, which is clear from the fact that she was asked to approach the High Court. 

Fair Trial is an integral part of most precious Fundamental Right under Article 21. The moment Supreme Court made those unfortunate comments, various television channels in the country started making her ‘Media Trial’, and spreading narratives to create pressure to arrest her and this is in addition to death threats hurled at her already. Not only this, but mudslinging is also on, together with threat of rape and murder.          

Supreme Court is expected to be a protector of all citizens (including the jail prisoners) and their fundamental rights; but in this case, Supreme Court has played a role which is totally unexpected and unacceptable too. The Declaration of Human Rights of United Nations, to which India is a signatory, talks about even the rights of ‘War Prisoners’ (POW).  And here in this case, Supreme Court, even when the trial has not begun, she is condemned as criminal and ‘persona non grata’ (a person not acceptable) of a country. Supreme Court went ahead and said she is not desirable person for a nation. What a shocking statement by a responsible organ of the State! Deplorable and despicable! Supreme Court did not have a single piece of evidence before it and still it went ahead and observed that the social harmony in the country is disturbed because of her utterances on television debate. Then, a question in the mind of common man is as to why Hon. Supreme Court does not take cognizance, suo moto of various statements made by undesirable persons belonging to different religious faiths. Is it frightened to proceed against such irresponsible people? It seems that even Honorable judges have carried away and got biased by media reports, which it is not expected to happen. That is why I mentioned above about ‘Judicial Activism’.

It is inexplicable, shocking and frightening, when such a constitutional authority overlooks the oath taken by it, while becoming a judge of the Supreme Court, under Article 124 (6), in the format prescribed in the Third Schedule, Part IV of the Constitution. The said oath is as under:

                                    “I, A.B., having been appointed Judge of the Supreme Court of India do swear in the name of God / solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favor. Affection or ill-will and that I will uphold the Constitution and the laws.”   

The above oath emphasizes two important parts,

(a) I will bear true faith and allegiance to the Constitution, and

(b) I will uphold the Constitution.  

Now, remarks passed / observations made by the Hon. Judges of Supreme Court are clearly indicative of the violation of the constitution mandate, namely, above two parts of the oath taken, while swearing in as Judge. Not only this, but those remarks is brazen assailment on her fundamental rights of Article 20 read with Article 21 of the Constitution.

Really what Hon. Supreme Court wants to communicate to citizens of India? Are these remarks not undermining the express and valuable provisions of the Constitution, as stipulated in Article 20 (Protection against Conviction) & Article 21 (Right to Life)?

Still there is a ray of hope. She can and she should file a Review Petition, before Hon. Supreme Court and pray for expunging those remarks, even though they are not forming the part any judgment; so naturally those remarks will not be definitely be treated and referred as ‘Binding Precedent’, under Article 141 of the Constitution. I, as a citizen of Independent India, wish and hope that those remarks will be obliterated from all records, and if a need arises, Hon. Chief Justice of Supreme Court of India should constitute a larger bench and decide the propriety of those remarks, and lay down guidelines, for the prospective overruling of such unfortunate, irrelevant and unwarranted observations.

Historical Background It is pertinent to note that the Doctrine of Prospective Overruling was a derivative of the retrospective notion of precedent, invoked and applied in the case of I. C. Golaknath & Ors v. State of Punjab & Anrs (1967 AIR SC 1643 : 1967 SCR (2) 762) by Chief Justice Subba Rao. Despite being the subject of controversy, it seized its place in the Indian jurisprudence. The Doctrine of prospective overruling was propounded by Justice Cardozo and Justice Lerned Hand, as it narrows down the vague operational scheme of judicial pronouncements. It will not be out of place to mention here that this ‘Doctrine of Prospective Overruling’ was overruled in the subsequent famous case of Kesavnand Bharati Sripadagalvaru & Ors. Vs State of Kerala & Anr. AIR 1973 SC 1461.

Just now, I learnt from television news bulletin that one person has written to Hon. Chief Justice of Supreme Court of India requesting to initiate necessary action to get those unfortunate remarks removed from the records of the Supreme Court.

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