Legal fraternity takes umbrage on pro-RSS elements’ clamour for removal of SC bench remarks

By Abdul Bari Masoud

Of late, oral observations made by judges of the higher judiciary have sparked debate in the country. Even a group of retired judges and civil servants and army veterans wrote to the Chief Justice of India asking him to ‘expunge’ the oral observations made by a Supreme Court bench while hearing a plea brought by now-suspended BJP spokesperson Nupur Sharma.

On July 1, Nupur Sharma received a harsh reprimand from a vacation bench of Justices Surya Kant and J.B. Pardiwala for her disparaging remarks against the last Prophet of Islam. The bench stated that Sharma’s “loose tongue” had “set the entire country on fire” and that she was “single-handedly responsible for what is happening in the country.”

The legal world appeared divided over the incriminating remarks the Supreme Court made about Nupur Sharma. While a group of former judges claimed the bench violated the “Laxman Rekha,” a top lawyers’ organisation found no issues with the court’s oral observations made in the course of hearing.

A section of former all India services officers and veterans of the defence services joined the group of former judges in alleging that the highest court’s remarks had left an “indelible scar on the justice system of the largest democracy.”

The group, which consists of 25 veterans, 77 ex-all India forces officers, and 15 former high court judges, claimed that the “unfortunate” remarks are out of line with the judicial ethos and have caused “shockwaves” both inside and outside the country.

“In the annals of the judiciary, the unfortunate comments have no parallel and are an indelible scar on the justice system of the largest democracy. Urgent rectification steps are called for as these have potentially serious consequences on democratic values and security of the country,” they said in a signed statement.

“By no stretch, these observations, which are not part of the judicial order, can be sanctified on the plank of judicial propriety and fairness. Such outrageous transgressions are without parallel in the annals of Judiciary,” it added.

“The observations are too serious to be overlooked if rule of law, democracy has to sustain and blossom and deserve to be recalled with the stance that soothes minds that care for justice,” they stated.

Former Bombay High Court Chief Justice Kshitij Vyas, former judges P N Ravindran and S M Soni of the Kerala High Court, R S Rathore and Prashant Agarwal of the Rajasthan High Court, and S N Dhingra of the Delhi High Court are among the 117 signatories.

The statement was also signed by former IAS officers Anand Bose, R S Gopalan, and S Krishna Kumar, as well as ambassador (retired) Niranjan Desai, former DGPs S P Vaid and B L Vohra, retired Lt. Gen. V K Chaturvedi, and retired Air Marshall S P Singh.

However, the group’s ideological leaning can be gauged from the oral ruling of the court in another case. The Supreme Court criticised the Union Government last week (June 30), saying orally that “missing from duty is a severe misconduct in paramilitary forces or the army, but may not be so in a civilian employment.” The individual in question was a Grade-IV employee in the Ministry of Steel. But it did not draw any attention of the same group which is said to be having sympathy towards the ruling party.

“Missing from duty is a major misconduct in paramilitary forces or the army. Had it been that kind of duty, we would have immediately agreed. But in a civilian employment, in some mines department, that too a class four employee? It is not that he was handling some sensitive kind of assignments where he compromised with his duties. We are agreeable that he had absented from duty, so retire him compulsorily, throw him out, don’t keep him there, but allow his family to survive!”, orally observed the Court.

This was also observed by the bench of Justices Surya Kant and Pardiwala in its order in the case Union of India & Anr. Vs. R.K. Sharma. The respondent was working as a Daftry (appears to be Grade-IV post).

While this was going on, the All India Bar Association (AIBA) sent Chief Justice of India (CJI) N V Ramana a letter asking him not to take cognisance of a letter petition asking for the withdrawal of critical comments made about Nupur Sharma. The letter also stated that the AIBA “appreciates” the comments made by the two judges.

Taking umbrage at such oral queries and remarks, and then filing petitions and sending letters to ‘expunge’ those remarks is not known in law. How can an oral remark become a cause of action for a fresh petition, and any order be passed? AIBA’s chairperson and senior advocate Adish C Aggarwala asked.

“During the course of hearing of any matter, the judges engage with the counsels. They don’t maintain sphinx-like silence,” he said.

“While engaging with counsel, it is natural for judges to open up and make observations and suggestions. The question of expunging observations, even if irrelevant, shouldn’t arise since these remarks are only observations without any precedential value,” the bar body said in the letter to Ramana.

By pulling up Ms. Sharma, a lawyer with 20 years of experience at the Bar, the Bench, according to Aggarwala, conveyed a clear message to society as a whole that public figures and political party spokespersons should be more cautious not to offend anyone’s religious sensibilities. In that regard, the Bench has expertly carried out its constitutional mandate. The judiciary has a responsibility to protect this country’s secular fabric from irresponsible behaviour of public leaders.

Concurring with the views of the Bar Association, senior advocate and Congress spokesperson Dr. Abhishek Manu Singhvi said the Bar, as well as the vast silent majority, stood behind the learned bench for their timely intervention that saved a situation from being exacerbated.

Without taking the name of the above group, Dr. Singhvi told Radiance, “By attempting to intimidate the Supreme Court, these actors unwittingly exposed the perpetrators and beneficiaries of the violence.”

He alleged that “the Modi government’s approach to the judiciary smacks of three “Is”: Influence, Interference and Intimidation”.

“When a bench of the Supreme Court made strong and pertinent observations regarding the reckless conduct and arrogance of a BJP spokesperson, we saw a three-pronged attack that has become an all-too-familiar tool of the ruling dispensation. (1) Savage and faceless trolls spewed fake news and propaganda, (2) an orchestrated letter by “intellectuals” was dispatched, and (3) this was accompanied by one-sided reporting by sections of the media”, Congress spokesperson observed.

Barring a tiny section, the legal fraternity as a whole commends the judges’ observations because they target religious extremists who seek to stoke hatred and division in the country.

Sadique Qureshi, advocate of Bombay High Court, told Radiance that the hope from the judiciary has not been broken so far, where two fingers cause harm, three are still recognising the benefit, the evidence of this has been given by the judges of the division bench, Justices Surya Kant and JB Pardiwala. The judges have shown a high degree of equality before the law. We should congratulate them, he added.

Jai Shankar Gupta, senior journalist and a member of Press Council of India said mere uttering some words were not enough, the court needs to act against them. Speaking with Radiance, Gupta pointed out that the same criminal laws were enforced against Ms Sharma as against Mohammed Zubair of Alt News but the Supreme Court did not direct the Delhi police to take action against her.

In reference to Chief Justice Ramana’s recent address in the US, he stated that the Babri Masjid-Ramjanam Bhoomi case verdict would have been different had the judiciary adhered to this principle.

While commenting on the Union of India & Anr. Vs. R.K. Sharma case, senior advocate Sarim Navid told Radiance that the standards applicable for the higher echelons of government are often not extended to the Grade 3 and 4 employees. The protections offered to IAS and IPS officers by reason of their cadre and cadre-based loyalty from action and criticism often make them feel immune from action. For instance, the recent incident where an IAS couple was penalised for shutting a stadium down to walk their dog shows that powerful civil servants can get away with a lot.

He further pointed out that mere absence from duty led to dismissal from service as standards applicable to civil servants ought to be the same across all grades.

Constitutional courts cannot sit in sphinx-like silence or remain impassive while hearing cases, particularly the kinds Ms. Sharma presented before them, the legal fraternity underlines.

On intimidation to judges, Justice Pardiwala was recently forced to observe: “Attacks attempted at our judges for the judgements will lead to a dangerous scenario where the judges will have to pay greater attention as to what the media thinks rather than what the law actually mandates. This puts the rule of law on the burner ignoring the sanctity of the respect for the courts.”

Recently, Karnataka High Court judge, Justice Sandesh had said he had reported the perceived threat to the authorities concerned.

Dr. Singhvi alleged that it is no secret that this control freak, micro-managing, dossier-loving government has been manipulating the judiciary in different ways.

The legal fraternity says that only if harsh measures are taken against these hate-mongers, regardless of their religion, will India become a powerful and successful country.

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