Inconsistency in the Judiciary: A Tale of Two Judgments The Wire

08, Jul 2022 | Jagdeep S. Chhokar

The Supreme Court’s judgments in the cases of Zakia Jafri and Nupur Sharma are a study in contrast; one in which observations in court supplanted the main arguments of the petitioner, and the other, where the court proceedings were virtually left out.

While the latter was technically an order, for the sake of readability, both will be referred to as ‘judgments’.

These two judgments are a study in contrast. In the former, the court goes out of its way to write things that might well have been mentioned during the court proceedings, but were certainly not the main contention; in the other, it refrained from writing what was actually said during the court proceedings. Let me explain.

The Zakia Ahsan Jafri judgment 

The Zakia Ahsan Jafri vs State of Gujarat and another case (henceforth, Zakia Jafri) was a special leave petition (SLP), filed by Zakia Ahsan Jafri and Teesta Setalvad against the judgment and order passed by the Gujarat high courtThe inclusion of Setalvad as a petitioner was objected to by the respondents and the court agreed to drop her as a petitioner.

In the normal course, the Supreme Court would be expected to either uphold the petition and grant the special leave to appeal; or reject or dismiss the petition and refuse to grant the special leave to appeal.

In this case, the court decided to grant the leave to appeal, ”saying in paragraph 3 of the judgment: “In that light, we have granted leave to appeal and decided to examine the matter on merits at the instance of the appellant – Zakia Ahsan Jafri.”

Examining “the matter on merits”, the court, at the end of a 307-page judgment, said the following:

“Accordingly, we hold that this appeal is devoid of merits and resultantly, deserves to be dismissed in the aforementioned terms. We order accordingly. (Para 92)”

The judgment also has a 145-page annexure.

While holding that the “appeal is devoid of merits and resultantly, deserves to be dismissed” is fine, what is important is that the dismissal is “in the aforementioned terms”. These “aforementioned terms”, therefore, acquire great importance.

The judgment has been commented upon at great length by people who know the law much better than I do, such as a former judge of the Supreme Court; a lawyer who has been practising in the Supreme Court for many years; and also by a former bureaucrat. I will, therefore, not spend any time or space on that, but will confine myself to just a couple of points relevant to the essential thesis of this piece.

The following paragraphs or parts of paragraphs from the judgment need to be noted:

“The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State.” (Italics supplied) (Paragraph 45).

The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete” (Italics supplied) (Paragraph 45).

“The respondents had justly contended that the attempt of the appellant was to keep in improvising their grievances and make new allegations including to involve new offenders as being party to the larger criminal conspiracy hatched at the highest level. Appellant in filing the protest petition had the gumption to assert that the list of persons was not exhaustive besides naming new persons as offenders. In the name of protest petition (running into 514 pages), appellant was also indirectly questioning the decisions rendered by the Courts in other cases including sub judice matters, for reasons best known to her. She was obviously doing so under dictation of someone. In fact, the sizeable contents of the protest petition are founded on the affidavits filed by those persons, whose version have been found to be replete with falsehood” (Emphasis supplied) (Paragraph 79).

“Despite the humungous task undertaken by the members of the SIT with sincerity, objectivity and dispassionately including to the satisfaction of this Court in all these cases, the argument of the appellant was bordering on undermining the integrity and sincerity of the members of the SIT” (Emphasis supplied) (Paragraph 85).

“While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat alongwith others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law” (Emphasis supplied) (Paragraph 88).

The following are a few amazing aspects of the judgment:

1. That the court knew what environment the supposed “protagonists of quest for justice” were sitting in;

2. That it knew how the minds of such “protagonists of quest for justice” worked, including how this mind “misled” itself;

3. That if a petitioner or appellant asserts that something that an investigative agency had done was not exhaustive, the petitioner or appellant is said to have “had the gumption”;

4. The court knew – though it does not say ‘how’ it knew – that the appellant “was obviously doing so under dictation of someone”. The honourable court did not feel the necessity of explaining what made this ‘obvious’.

5. That it is an absolute no-no for any petitioner or appellant to question or attempt to “undermin(e) the integrity and sincerity of the members of any investigating authority.

6. That proceedings lasting for 16 years is a rare event in the Indian judicial system.

7. That submitting a “complaint running … into 67 pages and then … filing a protest petition … running into 514 pages”, and “question(ing) the integrity of every functionary involved” in the investigative process shows the ‘audacity’ of the petitioner/appellant; which seems to be an extremely undesirable activity.

8. That the honourable court knew that the above two activities were done “to keep the pot boiling, obviously, for ulterior design.” Again, the court does not disclose or explain what the “ulterior design” was.

9. Following from the above, and “(a)s a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

It is left to the reader to decide if all of the above needed to be described in 307 pages while rejecting the appeal.

Two other points need to be noted about this judgment:

The first pertains to the observations of the Amicus Curiae (literally, a ‘friend of the court’). The dictionary definition of this phrase is: “A person, not a party to the litigation, who volunteers or is invited by the court to give advice upon some matter pending before it.”

In the present case, it was a senior advocate who had been invited by the court. The relevant paragraph from the judgment pertaining to the Amicus Curiae is reproduced below:

“The analysis and opinion of the SIT of the materials collected during investigation allegation-wise, witness-wise as well as, offender-wise are broadly agreed upon even by the learned Amicus Curiae – except the observations made regarding some matters, which observations have also been thoroughly enquired into by the SIT by way of further investigation and duly analyzed for recording its opinion (appended as Annexure-1 to this judgment), in the final report presented to the concerned Court” (Paragraph 81) (Emphasis supplied).

Annexure-1 has three paragraphs of immediate relevance to the Amicus Curiae. These are reproduced below:

“Shri Raju Ramchandran, Amicus Curiae has come to the conclusion that at this prima facie stage offences inter-alia u/s 153 A(1)(a) & (b), 153B(1) (c),166 and 505(2) IPC are made out against Shri Narendra Modi (Page 423 of the judgment) (Emphasis supplied).

“Shri Raju Ramchandran, Ld. Amicus Curiae is of the view that a prima facie case u/s 153 A(1)(a) & (b), 153B(1)(c), 166 and 505(2) IPC is made out against Shri Narendra Modi, Chief Minister (Page 426 of the judgment) (Emphasis supplied).”

“It may be mentioned here that the Ld. Amicus Curiae has agreed with the various recommendations made by the SIT on the different issues inquired into/investigated by the SIT. However, the Ld. Amicus Curiae is of the view that at this prima facie stage offences u/s 153A(1)(a)& (b), 153B (1)(c), 166 and 505 (2) IPC are made out against Shri Narendra Modi regarding the statement made by him in the meeting on 27.02.2002. In this connection, as discussed, above SIT is of the view that the offences under the aforesaid sections of law are not made out against Shri Narendra Modi” (Page 428 of the judgment) (Emphasis supplied).

The judgment and the Annexure go to great lengths to explain how the SIT made further investigations after receiving the views of the Amicus Curiae and on the basis of these further investigations the SIT concluded that the view of the Amicus Curiae was not correct.

It is, once again, left to the readers to make up their mind about what to make of the importance or value of the Amicus Curiae in this case.

The second point to note arises out of a tradition of the higher judiciary in the country. It seems to be a well-entrenched tradition in the Supreme Court and the high courts that whenever a bench consists of more than one judge, and if the judges agree and issue a unanimous judgment, the name of the judge who actually writes the judgment is clearly stated, though all the judges constituting the bench sign the judgment.

To the best of the author’s recollection, this tradition was first overlooked in the Ayodhya judgment, announced on November 9, 2019. This was a unanimous judgment from a bench of five judges, all of whom signed the judgment, but the name of the judge who wrote the judgment was not revealed.

The judgment under discussion, the Zakia Jafri judgment, appears to be the second judgment in the history of the Supreme Court not to reveal the name of the judge who actually wrote this unanimous judgment of a bench consisting of three judges.

The N.V. Sharma order

The N.V. Sharma versus Union of India and others case (henceforth referred to as the Nupur Sharma case, for reasons which will be evident soon) was a plea filed by Sharma to transfer FIRs registered against her in different parts of the country, to Delhi.

The very first question asked by the court was, “Why is she here under a deceptive name?” The response of the lawyer was, “she has threat …”. This is what clarified that ‘N.V. Sharma’ was a kind of pseudonym for Nupur Sharma.

Starting with this first question, the court continued to make observations and ask questions, some of which are worth reproducing.

“She has threat or she has become security threat? The way she has ignited emotions across the country. 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 says she was a lawyer it is shameful. She should apologise to the whole country.”

When the lawyer representing Sharma said, “FIR was in Delhi first…”, the court asked

“What has Delhi police done? Don’t make us open our mouth. What was the TV debate for? Only fan an agenda? Why did they choose a sub judice topic?”

“These acts are done by people who are not religious at all.”

The lawyer said, “She will be called to magistrate court now…”, the court responded:

“Her remarks show her obstinate and arrogant character. She should go to those courts.”

“What if she is the spokesperson of a party. She thinks she has back up power and make any statement without respect to the law of the land.”

The lawyer interjected, “There was a question by the anchor to which she responded …”, to which the court’s response was:

“There should have been a case against the host then.”

The lawyer, again, tried to explain, saying, “But there was no intention. It was again and again said that the ‘Shivling’ was just a fountain or a fawarra. This was said by the debater on the other side and not the anchor … If this is the position, then every citizen will have no right to speak.”

The Court responded by saying:

“In a democracy everyone has a right to speak. In a democracy, grass has right to grow and donkey has the right to eat.”

The lawyer then read out the names of states where the FIRs against Sharma had been registered. These stretched from Delhi to Mumbai, Nagpur to Jammu and Kashmir, among other states. He then read out parts of the Arnab Goswami judgment on how journalistic freedom needs to be protected.

The Court’s response to this was:

“There is nothing like that principle of law laid down which you wish to submit.”

The lawyer then read parts of the T.T. Antony judgment on the aspect of multiple criminal proceedings on the same cause of action. Only the first information about a cognisable offence can be the source of Section 154 and thus no second FIR.

To this the Court’s response was:

“Thus you have the remedy and you can approach the High courts concerned in this case and cite this law.”

The lawyer then said, “it was only for one single episode. Here law laid down is for all citizens.” To this the Court responded, saying

“Not all citizens, here a special treatment was meted out to an individual.”

The lawyer maintained, “Multiple FIR on the same incident cannot happen…”. The Court’s riposte was:

“The freedom of a journalist cannot be equated to that of a political spokesperson who is making statements on television and ignites emotions across the country.”

The lawyer insisted, “But the fundamental rights … here it was only one incident. There was only one FIR in Delhi”. Again, the Court asked:

“What happened in that FIR?”

 “She has joined probe”, informed the lawyer. The Court asked further:

“Then what happened? There must have been red carpet for you. A red carpet!”

The lawyer tried to explain again, “Even Satinder Singh Bhasin got a similar treatment where similar FIRs were clubbed. He was a businessman and not a journalist. He was not put in double jeopardy with respect to T.T. Antony case.”

Finally, the Court agreed:


The lawyer tried to press home the apparent advantage of the agreement, saying, “This court has laid down a yardstick for multiple FIRs. Treatment of law should be equal.”

The Court did not take the bait, saying:

“When you register a FIR against someone then they are arrested but not you. This shows your clout.”

“Sorry if the conscience of this court is not satisfied then law can be moulded accordingly.”

The lawyer finally gave up, saying, “Then I will withdraw the plea,” And the Court agreed, saying:

“We allow the withdrawal.”

What makes this case special, as compared to  Zakia Jafri, is that after all this discussion, the Order issued by the court read as follows:

“Learned senior counsel for the petitioner seeks and is permitted to withdraw the present writ petition with liberty to avail the alternate remedies available under the law. The writ petition is dismissed as withdrawn.”

In conclusion

This is why taken together, these two judgments show remarkable inconsistency in the approach of the Court. The judiciary’s reluctance to deal with cases having political ramifications is not new. It was commented on specifically even in 2016, and then in 2018 in the context of reducing criminalisation of politics in the country.

But as recently as July 1, 2022, a new factor has come into play. Chief Justice of India (CJI) N.V. Ramana, speaking at a felicitation event organised by the Association of Indian Americans in San Francisco, referred to the “the vigorously promoted ignorance among general public” and the “flawed thinking of all hues flourish(ing) in the absence of proper understanding among people about the Constitution and the functioning of the democratic institutions” particularly among political parties, both “(t)he party in power” and “(t)he parties in opposition.”

CJI Ramana’s actual words were:

“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. It is the vigorously promoted ignorance among general public which is coming to the aid of such forces whose only aim is to run down the only independent organ.”

The CJI further asserted that the judiciary is “answerable to the Constitution and the Constitution alone” and went on to add, “To enforce checks and balances envisioned in the Constitution, we need to promote Constitutional culture in India. We need to spread awareness about the roles and responsibilities of individuals and institutions. Democracy is all about participation.”

It now remains to be seen if the CJI converts his words into action!

The original piece may be read here


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