When can the court club FIRs? Do its oral observations merely play to the gallery?
As the Supreme Court Friday said that Nupur Sharma’s “loose tongue” is “single-handedly responsible” for igniting tension across the country, the BJP’s suspended spokesperson had to withdraw her petition, which asked for all cases against her in several states to be transferred to Delhi in view of a threat to her life.
Multiple FIRs have been filed against Sharma after her remarks on Prophet Muhammad – on a Times Now show on the Gyanvapi case moderated by Navika Kumar – snowballed into a controversy. But before the cases were lodged, Sharma had been granted security by the Delhi police in view of “constant threats to her life”. In fact, when a team of Mumbai police came to the national capital to look for her, she had gone missing.
Newslaundry takes a look at five major takeaways from the hearing on Friday, when a bench of Justices Surya Kant and JB Pardiwala heard Sharma’s petition, filed through advocate-on-record Rachitta Rai and argued by senior counsel Maninder Singh.
Justice Kant said that Sharma was not arrested despite the case against her and this reflected her clout. “What if she is the spokesperson of a party? She thinks she has back up power and makes any statement without respect to the law of the land.”
“When you register a FIR against someone then they are arrested but not you. This shows your clout,” the court said.
The FIR against Sharma was filed under IPC section 153A for promoting enmity – a non-bailable offence which imposes criminal liability on the accused. It is also considered a cognisable offence, which means the police can arrest the accused without a warrant.
It can be read in the backdrop of the arrest of Alt News cofounder Muhammad Zubair, who faced similar charges but was denied bail and is in police custody.
The court said Sharma's “loose tongue” is "single-handedly responsible for what is happening in the country”. It also asked why the TV news channel held a debate on a matter that was subjudice. “What was the TV debate about? Only to fan an agenda? Why did they choose a sub-judice topic?”
As Sharma’s lawyer said she was only responding to a question, the court said “there should have been a case against the host” then.
This comes days after the Editors Guild of India questioned TV channels – in an ostensible reference to Times Now – for “giving legitimacy to toxic voices”.
‘No comparison with a journalist’
Sharma’s lawyer also argued that the Arnab Goswami case was a precedent. Granting bail to the Republic TV chief in an abetment to suicide case, the Supreme Court had in 2020 observed that criminal law should not become a weapon for selective harassment of citizens. “The law has been laid down for every citizen,” Singh said.
“Not every citizen. Some special treatment was given to a journalist,” Justice Kant 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.”
Goswami also faced multiple FIRs for alleged incitement of violence and defamation across the country.
As Sharma’s lawyer referred to the 2001 TT Antony case, in which the Supreme Court observed that two FIRs can’t be filed for the same offense, Justice Kant suggested that if there is a second FIR, Sharma can approach the high court.
Singh then mentioned Satyinder Singh Bhasin, a businessman held over alleged scams linked to a bike taxi scheme and land transfers. The court had said that multiple proceedings can’t be in the larger public interest, but refused to budge from its position in Sharma’s case on Friday.
According to Abhinav Sekhri, a Delhi-based criminal lawyer, there is no clear law on clubbing FIRs and such petitions are about the court’s discretionary power. “Arnab Goswami’s judgment is more precise on the issue of multiple FIRs for the same incident…by clubbing what the court usually means is not literally clubbing the FIR but allowing one case to go forward. In Goswami’s case, all the FIRs had the exact same statement and almost identical allegations, so the investigation in the one…was allowed to go ahead…consideration also has to be given to the aggrieved complainant prosecuting the case and potential witnesses who will be disadvantaged besides the accused. All of this has to be considered before passing an order.”
The claim about misuse of remarks
Amid protests in several parts of the country, Sharma had issued an apology on Twitter and retracted her remarks a week after the debate. However, on Friday, Justice Kant noted that the withdrawal was “too late”. “She should have gone to the TV and apologised to the nation.”
Interestingly, Sharma had blamed Zubair for misrepresenting her statements from the Times Now telecast. But Justice Kant said that if she felt the debate was misused, she should have immediately filed an FIR against the anchor.
Times Now deleted the debate from its YouTube channel while the BJP sought to distance itself from Sharma’s remarks when they caused a diplomatic embarrassment.
Oral observations, ‘playing to the gallery’
The court’s observations were verbal; they did not find any mention in the single-page order, which merely stated that Singh sought to withdraw the petition and it “is dismissed at withdrawn”, in two sentences.
While many were quick to praise the court for the scathing remarks, it also received criticism from several quarters. Gautam Bhatia, a constitutional law expert, tweeted that the statements of the bench were “totally unwarranted” and that the court seemed to be “playing to the gallery” while undermining a really important safeguard against police harassment, which will hit people across the board and “not just the people you dislike”. “She has a right under law to get those FIRs clubbed. It’s a basic procedural safeguard to ensure that someone isn’t harassed in twenty different states.”
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