The Supreme Court’s (SC) refusal to consolidate multiple FIRs filed in several states against former BJP spokesperson Nupur Sharma for her remarks against the Prophet flies in the face of both long-standing judicial precedents and standards of prudence and predictability in the administration of the criminal justice system.
In 2001, the SC, in TT Antony vs. State of Kerala, made it clear that only the earliest information in regard to the commission of an offence could be investigated and tried. Subsequently, in Babubhai vs. State of Gujarat (2010), the Court explained that the test to determine the sameness of the offence is to identify whether “the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction”.
In Sharma’s case, at least nine FIRs have been filed in multiple states. All these FIRs were filed subsequent to the filing of the FIR by the Delhi Police’s Special Cell. The date and time of the occurrence of the alleged offence are the same in all the FIRs. All the FIRs refer to the same television debate in which Sharma made the remarks against the Prophet. The sections of the Indian Penal Code are almost the same in all the FIRs. Pertinently, the petitioner joined the investigation before the Delhi Police and has also recorded her statement. Most important of all, Sharma is facing rape and death threats from radical groups and subjecting her to investigation and trial in multiple states will seriously endanger her life.
Recently, the SC extensively relied upon TT Antony while granting similar relief to journalists Arnab Goswami and Amish Devgan. Importantly, the writ petition was ultimately withdrawn by Sharma’s counsel, but the court proceedings — as reported in the media — reveal two reasons why the SC did not seem inclined to extend the benefit of TT Antony to Sharma.
First, the bench said that party spokespersons and journalists cannot be treated identically. The bench reportedly said: “The case of a journalist on expressing rights on a particular issue is on a different pedestal from a spokesperson who is lambasting others with irresponsible statements without thinking of the consequences.”
This view is completely misplaced. The Constitution creates no hierarchical difference between journalists and ordinary citizens when it comes to the enforcement of fundamental rights. The right to approach the SC under Article 32 is in itself a fundamental right. Nor did the SC craft any distinction on the basis of the status or affiliation of the accused in TT Antony.
Importantly, the SC, in 2013, relied upon TT Antony while granting relief to BJP leader and current Union Home Minister Amit Shah. In that case, the SC clubbed the murder case of Prajapati, an eyewitness to the abduction and murder of Sohrabuddin Sheikh, with that of the Sohrabuddin fake encounter case and restrained the CBI from conducting a separate trial in the two cases that were said to be a part of the same conspiracy. Arguably, the two cases were not part of the same transaction since the two alleged murders happened at a considerable distance of time.
Second, the bench said that Sharma has not unconditionally apologised for her remarks and her political clout is apparent from the fact that she has not been arrested despite an FIR being filed against her by the Delhi Police. This view is again misplaced. Whether or not Sharma tendered an apology is not germane to the issue at hand. Seeking or tendering an apology may be a mitigating factor while deciding punishment but only after the guilt is proved. And if the bench felt unsatisfied with the Delhi Police, it could have invoked its extraordinary powers and transferred the investigation to a non-BJP ruled state or appointed a special investigation team as it has done in several cases in the past.
The issue before the SC was straightforward: Whether multiple FIRs filed in different states should be consolidated or not. There cannot be two opinions on this. This basic procedural safeguard ensures that state actors do not abuse the statutory power of investigation. Filing of successive FIRs amounts to an abuse of statutory power of investigation and is a fit case for the SC to exercise its writ powers under Article 32 because high courts cannot transfer cases from one state to another.
In addition, prudence demands that state resources and judicial time are not spent on a multiplicity of proceedings. The multiplicity of proceedings would result in violation of Sharma’s fundamental rights under Article 21 as parallel investigations would result in her being forced to join investigations in different police stations in different states. This serves no practical purpose because ultimately it is only one of the police reports that would be tried by a court of law.
In Sharma’s case, all the SC had to do was to judicially examine whether the test of sameness of offence was met or not. Instead, the Court jumped into the merits of the case, disregarded binding precedents, launched a tirade against Sharma and made off-the-cuff remarks that are bound to influence public opinion, prejudice trial and impinge upon valuable constitutional freedoms. That no subordinate court would release Sharma on bail in view of the apex court’s harrowing oral indictment is too important a fact for the SC to have overlooked.
Judges are not accountable for their disparaging oral observations made in the course of a hearing. Written observations form part of the judicial record and could be expunged but this is not the case with oral observations. At best, Sharma may file an application requesting the SC to relieve her of the concession to withdraw the petition and have it re-heard on merits. In the absence of strict guidelines, some degree of caution is necessary on the part of judges to work within the confines of judicial propriety and augment the sanctity of the institution of the SC.
Jaising is senior advocate and Goel is advocate, Supreme Court of India