Nupur Sharma case: To err is human, to rectify it is justice

The legal maxim actus curiae neminem gravabit, which means no party should suffer due to the act of the court, is a fundamental prerequisite of a fair judicial process. In numerous landmark judgements, the Supreme Court and various High Courts have affirmed its importance as a guiding principle in dispensing justice. The principle also necessitates that if in the course of adjudicating a case, through an act of court any party has gained an unfair advantage and the other party has been disadvantaged and is bound to suffer, the outcome has to be neutralised and rectified. In 2019, the Supreme Court in a case titled Odisha Forest Development Versus M/s Anupam Traders reiterated the importance of this maxim. In a case titled BK Office Needs Private Limited vs Divya Shakthi Granites Limited, the High Court of Andhra Pradesh made significant points in this regard. It stated in its judgement: “The principle underlying the maxim ‘actus curiae neminem gravabit’ is that the act of court should harm no one. The said maxim is founded upon the principle of justice and good conscience. Explaining the maxim, the courts have held that where an error was committed by the court the same must be undone by the court.” On 1 July, Nupur Sharma, a former spokesperson of a political party, moved the Supreme Court with a petition seeking to issue appropriate writs quashing numerous first information reports (FIRs) filed against her in different parts of the country for her comments made against a religious community during a television news debate. Alternatively, she sought clubbing of all the FIRs and transferring them to the Delhi police for investigation. However, the Bench of the Supreme Court asked Sharma to avail alternative remedy. The court held that as the relief that Sharma sought can be granted by the High Court in the exercise of its power under Article 226 /227 of the Constitution, Sharma should seek relief from the High Court. The order was completely in line with the settled principles of law. But before passing this order the Bench made certain oral observations that were on the verge of holding Sharma guilty of the crime for which she was accused, without hearing her side. The court observed that Sharma was single-handedly responsible for what was happening in the country which included the beheading of a man in Udaipur by the members of a community whose religious sentiments were allegedly hurt by Sharma’s comment. Nupur Sharma made a comment against a religious community during a debate that attracted several FIRs against her. Whether the statement made by Sharma was of a nature that should attract the penal sections under which she was booked or not was something that the court would have decided after hearing both the parties. What the court did instead was that it made it clear that it holds Sharma responsible for the communal flare-up that took place after her statement. The court made this statement through an oral observation, which doesn’t have a legal sanction but which was bound to prejudice her case. Following the harsh rebuke faced on 1 July, Sharma withdrew her plea. However, she again filed a miscellaneous application seeking to revive her earlier plea. The plea was heard by the same Bench on 19 July. Sharma’s lawyer submitted before the Bench that it has become nearly impossible for Sharma to avail alternative remedy granted by the Supreme Court and that there is an imminent necessity for the court to intervene and protect her life and liberty as guaranteed under Article 21 of the Constitution. It was also submitted that threats faced by Sharma were acting as an impediment in seeking alternative remedy as directed by the court in its 1 July order. Sharma’s lawyer cited numerous instances of life threats that she is facing, including an open threat by a man named Salman Chishti claiming to be a khadim of Ajmer Dargah who called for her beheading. The bench while considering the submission made by Sharma’s lawyer held that its main concern is to ensure protection for Sharma so that she can avail herself of the alternative remedies and it issued notice to the Union and states (where FIRs have been registered) to explore the modality of giving her security from life threats. The Bench, also as an interim measure, directed that “no coercive action shall be taken against the petitioner pursuant to the impugned FIRs or such FIRs/complaints which may be registered/entertained in the future pertaining to the same telecast dated 26.05.2022”. The order was hailed as a “big relief” for Nupur Sharma. The supporters of Sharma appreciated the judgement as a “course correction”, while her detractors termed it as a “biased” order. But as Supreme Court advocate Ashish Goel says, “The court gave the relief that she was entitled to. This is the basic constitutional duty that courts have.” Part III of the Constitution which contains fundamental rights guaranteed to the individuals is often referred to as the ‘Magna Carta’ of the Indian Constitution. Rights that are guaranteed under it are protected by the State. And in case the State infringes these rights, the citizens are given the right to claim them against the State by way of filing a writ petition guaranteed under Article 32 which BR Ambedkar once referred to as “the very soul of the Constitution and the very heart of it and without which this Constitution would be a nullity”. According to Article 12 of the Constitution, the State includes the government and Parliament of India and the government and the legislature of each state, and all local or other authorities within the territory of India or under the control of the Government of India. There are numerous examples where the Supreme Court in pursuit of safeguarding fundamental rights called for including even the courts within the definition of State so that even its judgement can be challenged if seen to be violative of the fundamental rights. In the landmark case titled Naresh Shridhar Mirajkar versus State of Maharashtra, Justice Mohammad Hidayatullah in his dissenting opinion held that the term “State” in Article 12 should also include courts “because otherwise courts will be enabled to make rules which take away or abridge fundamental rights and a judicial decision based on such a rule would also offend fundamental rights.” In his article ‘Rights: Breadth, Scope, And Applicability (The Oxford Handbook Of The Indian Constitution) Ananth Padmanabhan writes that constitutional expert and learned jurist HM Seervai also opined that Justice Hidayatullah’s dissent was the correct view. Padmanabhan writes: “The question came up again for the court’s consideration in AR Antulay v RS Nayak. Here the court, in a peculiar and fractured verdict, held that a writ of certiorari would not be issued to another bench of the court under any circumstances. Yet, the court arrogated wide powers to itself to remedy an earlier order that violated Article 14 and perpetrated grave illegality. Sourcing authority from its inherent powers under Article 142, the court held that serious errors could be rectified ex debito justitiae that is, as a matter of right, and in pursuance of the maxim actus curiae neminem gravabit.” The article further makes an important point: Despite all the fuzziness surrounding this decision, both reasoning and conclusion, there is one proposition that emerges clearly. The judiciary could, when discharging its judicial function in any given case, violate fundamental rights. Padmanabhan in his article also writes, “Supreme Court in its later decision in Rupa Ashok v Ashok Hurra built on Antulay a one-off case where the court corrected an earlier error, to fashion the institutional remedy of a curative petition in all cases where the petitioner has been denied a hearing or the judge is biased.” The author highlights another important point when he writes: “In effect, the court has confined the scope of errors that could potentially violate fundamental rights while in the discharge of judicial function to the two tenets of natural justice: no man shall be condemned unheard, and no man shall be a judge in his own cause.” The Supreme Court is the guardian of fundamental rights. The original jurisdiction of the apex court includes matters regarding the enforcement of the fundamental rights. The Supreme Court is the most powerful safeguard provided to the citizens against any arbitrary action of the State. It has an illustrious history of safeguarding individuals’ right to life and liberty. From Maneka Gandhi versus Union Of India to ADM Jabalpur versus Shivkant Shukla, there are shining examples where India’s apex court through concurrent view and at times through dissent has expressed its unwavering commitment toward the due process of law. Nupur Sharma should have been heard before the honourable Bench made its remarks. While the court provided ‘interim’ relief in form of disallowing any coercive action in the FIRs filed against her, the fact remains that the observations made by the esteemed Bench on 1 July have the potential of prejudicing Sharma’s case. The court could have done something in this regard too. It can be argued that the observations made by the Bench were oral in nature and doesn’t have legal sanctity attached to them and were not part of the written order and there was no way the court could have done anything about it. It is wrong to assume that the Supreme Court could not have done anything in this regard. India’s constitutional history is marked by illustrious examples of innovative mechanisms created by the Supreme Court from time to time to safeguard individual liberty from authoritarian tendencies. It was the Supreme Court that enunciated the Basic Structure Doctrine that provided a timeless shield to India’s constitutional and democratic edifice from all future onslaughts. Given this fact, to think that it cannot correct a wrong done to an individual would be underestimating the powers of the highest court of the land. What is required is that the court accepts that a wrong was done to an individual and feels that it’s the constitutional obligation to rectify it. The author is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal. 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