Judiciary, Nupur Sharma, and the right of being innocent till proven guilty

On Friday, 1 July, I was giving the final touches to an article that I was writing about the American judiciary and Roe vs Wade. I noted with great satisfaction that the Indian judicial system — thanks to its process of appointing judges and its conduct — was less partisan than its American counterpart. Overall, the Indian judiciary has over the years carried itself with a sense of dignity, decorum and responsibility that make us Indians proud.

But my self-appreciative arrogance came crashing down when I scrutinised remarks made by a Supreme Court bench hearing a plea by former BJP spokesperson Nupur Sharma for transferring FIRs against her in many states to Delhi.

Nupur Sharma is in the midst of a controversy for her recent remarks that were hurtful to a community. She herself has apologised for her comments. Nevertheless, numerous FIRs have been filed against her in several states and she has been the target of an incessant number of serious death threats that make mockery of the laws of the land.

In order to minimise the threat to her life and for a fair trial, Nupur Sharma had sought transfer of all cases to Delhi.

While refusing to provide relief to Nupur Sharma, the two-judge SC bench made certain remarks that should have been avoided. Commenting on the case, one of the judges said: “The way she (Nupur) 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.”

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A person is deemed innocent until proven guilty by a fair trial. In this case, the honourable judge has preempted the whole process and passed a judgement of guilt even before a trail. Such unverified charges can be a part of an Opposition leader’s rhetoric but cannot find place in the vocabulary of a learned judge.

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The Supreme Court bench also said that Nupur Sharma’s outburst was responsible for the unfortunate incident at Udaipur, where a tailor was murdered.

Here, one needs to understand that what happened in Udaipur was not an unfortunate incident; it was a cold-blooded murder. Murder cannot be justified or temporised whatever the provocation.

The decision not to grant relief to Nupur Sharma flies in the face of judicial precedent. When this was pointed out by the defence counsel citing the Arnab Goswami vs Union of India case (2020), the court responded that Goswami being a journalist was privy to relief and not Nupur Sharma.

That rationale does not hold water as the Supreme Court made it very clear in the Arnab Goswami 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. This will effectively destroy the freedom of the citizen to know of the affairs of governance in the nation and the right of the journalist to ensure an informed society. 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.”

Finally, by refusing relief to Nupur Sharma, the honourable court has increased her vulnerability. In a civilised, democratic society even a serial killer is not left to the mercies of a mob to be lynched.

In summary, a basic tenet of justice is denied to Nupur Sharma that holds a person innocent until proven guilty.

Speaking at an event in San Francisco, Chief Justice of India NV Ramana averred: “As we celebrate 75th year of Independence this year and as our Republic turned 72, with some sense of regret, I must add here that we still haven’t learnt 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 parties in Opposition expect the judiciary to advance their political positions and causes… This flawed thinking of all hues flourishes in the absence of proper understanding among people about the Constitution and the functioning of the democratic institutions.”

CJI Ramana added, “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 SC is answerable to the Constitution and Constitution alone. And it is this very Constitution that gives every person, including Nupur Sharma, the right of not being guilty without a fair trial.

The Supreme Court of India is the only true independent institution in this country — an institution that continues even in these trying times to be respected, revered and held in awe by all Indians. In keeping with its glorious traditions, the court can relook at the honourable bench’s oral statements and see if these can be retracted.

The writer is a US-based author. Views expressed are personal.

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