In 1977, when Justice VR Krishna Iyer of the Supreme Court granted bail to a 27-year-old man from Rajasthan in a two-page order, little did he know that he had penned down 12 words which would go on to become a landmark principle of criminal jurisprudence in India. “The basic rule may perhaps be tersely put as bail, not jail,” Justice Krishna Iyer had said. This has since then been popularly paraphrased as the rule of “bail, not jail”.
ALSO READ | Threat to life increased after SC’s criticism, says Nupur Sharma as she moves top court again
Last Monday, a Supreme Court bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh felt the need to echo Justice Krishna Iyer’s words from 45 years ago. The bench said that arrest was a draconian measure resulting in curtailment of liberty and should be used sparingly.
The similarity between the 1977 judgment and the 2022 judgment is apparent. Though over four decades apart, both judgments from India’s highest court reiterate the same principle — that the liberty of an individual is sacred and that this fundamental right should never be violated until absolutely necessary.
When Nupur Sharma first approached the Supreme Court over a month ago, asking for the FIRs against her to be clubbed together, she did not anticipate the barrage of criticism that was about to come her way. Justice Surya Kant and Justice JB Pardiwala left no hold barred in criticising Nupur Sharma and her remarks on Prophet Mohammed, going to the extent of asking why she hadn’t been arrested yet.
ALSO READ| Prophet remarks row: Nupur Sharma moves SC seeking stay on arrest, hearing tomorrow
The bench had said that Sharma’s “loose tongue had set the country on fire” and that she was “single-handedly responsible for what was happening”. They had also gone on to say that Nupur Sharma ought to apologise to the whole country on national TV. Though these observations were reported across media platforms, none of the observations actually made it to the order passed by the court, which, in two lines, dismissed the petition as withdrawn.
Nupur Sharma has now filed a fresh application before the court. She seeks to revive her earlier plea for clubbing of the FIRs and this time around also seeks protection from arrest in the nine FIRs filed against her in four states. Nupur Sharma in her petition stated that the number of death and rape threats against her had increased since the Supreme Court made those harsh remarks against her.
The controversy, which was already snowballing, was made even bigger by the remarks that came from the apex court. Justice Kant and Justice Pardiwala both received criticism from various sections of the society. An open statement was issued by 117 peopleincluding former judges, bureaucrats and retired armed forces personnel, mentioning that the judges had “crossed the Lakshman Rekha” while making the remarks against Nupur Sharma and that the observations were not in sync with judicial ethos.
The criticism on social media was even greater as both judges were top trends for several days. Just days after the firecracker hearing in Supreme Court, Justice Pardiwala while speaking at the second Justice HR Khanna Memorial National Symposium said: “Trials by digital media were an undue interference for the judiciary”. “Attacks attempted at our judges for the judgments will lead to a dangerous scenario where the judges will have to pay greater attention as to what the media thinks rather than what the law actually mandates,” Justice Pardiwala said while calling for regulation of digital media and social media.
Now, with Nupur Sharma’s fresh plea, the spotlight is back on the two judges who will be constituting a special bench to hear the matter urgently on Tuesday. It is interesting to note that the first petition filed by Sharma seeking to club her FIRs together was on the ground that she feared there was a threat to her life. In her new plea, she states that these threats have renewed after the Supreme Court’s stern remarks against her to the extent that she now apprehends arrest.
ALSO READ| SC refuses to grant relief to Nupur Sharma for transferring all FIRs filed against her to Delhi
An important question that arises at this stage is whether these remarks that were only oral and not part of the record, can even be expunged by the Supreme Court? Few instances from the recent past suggest it’s possible.
In July 2021, Justice SS Shinde of Bombay High Court had withdrawn his oral remarks praising late Jesuit priest Stan Swamy after the NIA had claimed that the remarks had created a negative perception against the agency. Justice Shinde had clarified that his praise for Stan Swamy was not reflective of his incarceration under the Unlawful Activities Prevention Act.
In 2015, Justice Pardiwala, who was then a judge at Gujarat High Court, noted in an order that reservation and corruption are two things “that have not allowed the country to progress in the right direction”. The statement was met with a massive backlash with as many as 58 members of the Rajya Sabha approaching the then Vice-President and Chairman of Rajya Sabha Hamid Ansari with a plea to initiate impeachment proceedings against Justice Pardiwala. Hours later, Justice Pardiwala withdrew his remarks and stated that the remarks made were not “relevant or necessary” to the petition before him.
The Supreme Court on Tuesday will be faced with the same question — whether the remarks made by the bench were “relevant or necessary” to the petition that was before them? And in the course of this, the Court will decide on several legal issues, including whether Nupur Sharma will be granted protection from arrest and whether the FIRs against her will be clubbed together and transferred to Delhi. At the heart of it, lie the golden words by Justice Krishna Iyer “The basic rule may perhaps be tersely put as bail, not jail”.
— ENDS —