On Friday, the Supreme Court dismissed as withdrawn a writ petition filed by former BJP spokesperson Nupur Sharma which prayed to club the hate speech cases filed against her across the country. A vacation Bench of Justices Surya Kant and JB Pardiwala, while refusing to grant interim relief, criticised the remarks she had made leading to the case against her and made various oral observations.
The Supreme Court reportedly made observations including: “She faces a security threat or has become a threat to the security”; “These remarks are very disturbing… shows her arrogance. What is her business to make such remarks?”; “This lady is single-handedly responsible for what is happening in the country”; “We saw the debate on how she was incited. But the way she said all this and later said she was a lawyer it is shameful. She should apologise to the whole country”.
The bench in fact went on to observe that Nupur Sharma was responsible for the brutal hate crime in Udaipur.
In my view, these oral observations were uncalled for and ought to have been avoided by the Court.
First, the Supreme Court was seized of a writ petition filed under Article 32 of the Constitution which in itself is a fundamental right. A citizen of the country had thus invoked the Constitution before the highest court of the country, praying that she has serious threat to life and thus she cannot join investigation in a surcharged atmosphere at multiple places. She, therefore, wanted all the FIRs/complaints to be clubbed together and be investigated and tried collectively as she is facing continuous rape and murder threats by various factions. The Supreme Court could have simply declined to do so without making unnecessary comments on the merits of the allegations against the petitioner.
It is a cardinal principle of criminal law that an accused is innocent until proven guilty after trial by a court of competent jurisdiction. The Supreme Court, being the highest constitutional court of the country, ought not to have blamed, even orally, the petitioner for committing a crime for which she is still being investigated. Nupur Sharma has virtually been convicted without a trial as the statements made by her have been orally accepted by the Supreme Court to have incited violence.
The Supreme Court did not stop there and reportedly attributed to the petitioner the role of an instigator to the brutal hate crime which has happened in Udaipur. This is another instance of putting the cart before the horse. The accused are facing the due process of law and it has been reportedly found that they had links with Pakistan and had been planning something like this even prior to the statement made on television by Nupur Sharma. The Supreme Court ought not to have pre-empted a sensitive hate crime made viral on social media in this matter.
We have to be conscious of a situation that Nupur Sharma, a female citizen of the country under rape and death threats, has been marked for life not only by religious fanatics but now with a stamp by the judiciary without a trial. Nothing can be more serious than this. With great power comes great responsibility. The Supreme Court, being the highest constitutional court in the country, ought to have exercised caution in making oral observations during the course of the hearing. The Supreme Court must never forget its power rests in its restraint. The observations made by the apex court have a deep-seated pernicious effect on the investigation and consequent trial of Nupur Sharma.
The author is an Advocate on Record, Supreme Court of India. The views expressed in this article are those of the author and do not represent the stand of this publication.
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