It was somewhat surprising to hear the Supreme Court's comments on Friday, 1 July, while hearing a plea by former BJP spokesperson Nupur Sharma for clubbing of the FIRs against her.
"The way she has ignited emotions across the country. This lady is singlehandedly responsible for what is happening in the country. We saw the debate on how she was incited... She should apologise to the whole country," Bar and Bench quoted Justice Surya Kant as saying.
Justice Surya Kant also made several other comments castigating Sharma, saying she should have made a proper apology for her comments on television, and that being a party spokesperson was not a license to stir up comments.
He also criticised Times Now for the debate it organised on the Gyanvapi Mosque where Sharma made her comments, as the matter was sub judice.
The vacation bench of Justices Surya Kant and JB Pardiwala said they were not convinced with Sharma's plea and advised her lawyers to withdraw it, which they subsequently did.
This is not, however, any cause for celebration. Yes, Sharma made risible comments. Yes, she has done so before. Yes, she has not demonstrated any contrition apart from a half-baked apology.
But the events at the apex court are not cause for celebration. The comments by the court do nothing really to address the problem of hate speech of which Sharma is just one very small part, and in fact the court has ignored its own precedent in refusing to club the multiple FIRs against her.
Ignoring the SC's Own TT Antony Judgment on Multiple FIRs
First up, there's the fact that in playing to the gallery here, the bench is ignoring a precedent it established 20 years ago. The legal issue is hardly a difficult one to comprehend, and this isn’t some newfangled idea that requires a re-examination of judicial precedent.
In 2001, the Supreme Court had to deal with this issue in the TT Antony vs State of Kerala case.
The court held there that the very concept of an FIR – a First Information Report – meant that there could be no second FIR with regard to the same cognizable offence.
This is because the investigation is supposed to cover not just the alleged cognizable offence reported in the FIR, but any other possible offences that arise from the same set of facts.
In fact, the court went on to say that any subsequent FIRs would be an abuse of the statutory power of investigation.
During Nupur Sharma's hearing, her counsel relied on the judgment of the Supreme Court on a similar plea by Republic Editor Arnab Goswami in April 2020, who had asked for clubbing of FIRs against him around the country based on the Palghar lynchings.
The apex court had stayed all the FIRs except one, and transferred that one to Mumbai, so as to ensure that the investigation could continue, without prejudicing Goswami’s rights.
Two months later, the Supreme Court offered similar protection to News18’s Amish Devgan in the multiple FIRs filed against him for an allegedly inflammatory remark about Sufi saint Khwaja Moinuddin Chishti.
In Sharma's case, the bench observed that a political party's spokesperson could not be equated with that of a journalist. "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," Justice Surya Kant said, according to Live Law.
However, while Goswami and Devgan's status as journalists had been emphasised in the Supreme Court's orders granting them relief, the TT Antony principle, which was also relied on in both those cases, makes no distinction based on the nature of one's profession.
TT Antony, the petitioner in that case, was an executive magistrate in Kerala who had been booked for his role in an incident in 1994 when security forces fired on protesters against a government minister.
According to the apex court’s reasoning in TT Antony – reaffirmed in multiple cases subsequently – none of the subsequent FIRs should have been filed against Sharma, and they are an unnecessary harassment of the accused.
Now that they have been filed, there are two options – quash the subsequent FIRs or club them together.
It is understandable for the court to be wary of quashing the subsequent FIRs as investigations may still be ongoing, or aspects of some of the FIRs might be slightly different. Clubbing the FIRs together resolves that issue, and ensures a fair approach. This is indeed the logic of the decisions in both Goswami and Devgan’s cases, which both cite the TT Antony judgment.
One of the reasons the bench seems to have had for not agreeing to this was that the first FIR against Sharma was filed by the Delhi Police, but they don't appear to have done anything about it since. "What has Delhi Police done? Don't make us open our mouth," the bench said, according to Bar and Bench.
While there is a lot to be said about the Delhi Police's failures to investigate hate speech (by not just Nupur Sharma), if the court is of the opinion that it is not likely to investigate the matter fairly, it could have selected a different police station where one of the early FIRs had been registered and had the case transferred to them.
In Goswami's case, the first FIR against him had been registered elsewhere in Maharashtra, and was then transferred to Mumbai by the apex court while the others were stayed.
One does not need to have sympathy for Nupur Sharma or agree with her to see that her plea should have been accepted by the court, since having to respond to multiple FIRs across the country will be extremely arduous and difficult.
Some will point to how the court has failed to club FIRs against others facing multiple cases across the country (such as the makers of Amazon web series Tandav) and say that Sharma's treatment is only fair.
However, it is never a good thing when a court refuses to follow precedent on civil liberties, and will only become a new precedent for allowing abuse of investigation powers against other citizens as well.
A Failure to Take Action in Cases Where it Could Actually Tackle Hate Speech
It's all very well to make strong comments about someone like Nupur Sharma, who has already been dismissed by her political masters in communications to foreign countries as a 'fringe element'.
But when the Supreme Court has actually had the power to do something about hate speech and communal polarisation in recent times, it has failed rather miserably.
NOTE: Much of the criticism over Nupur Sharma's comments has focused on how she outraged the religious sentiments of Muslims by insulting Prophet Muhammad. However, while this would be an offence under Section 295A of the IPC, this provision runs too close to a blasphemy offence to be a good thing in a country which allows freedom of speech under its Constitution. At the same time, Sharma also basically threatened the Muslim community, saying "We know how to hit them where it hurts", and she has also been booked under Section 153A of the IPC, ie promoting enmity between different communities.
Campaigns of communal polarisation have ramped up over the last several months, beginning with calls for economic boycotts, and going on to include the hijab row in Karnataka, a spate of legal cases over ancient mosques, and the new trend for bulldozing homes of those accused of being involved in violent protests.
Through all of this, the Supreme Court has failed to act decisively and nip these campaigns in the bud even when it has had the opportunity to do so – such as the appeal against the Karnataka High Court's hijab ban verdict, or when a request was made during the Jahangirpuri demolition case for an order to authorities across the country to not engage in this Bulldozer Raj nonsense.
Even in the Gyanvapi Mosque case, the court could have interdicted attempts to file frivolous cases to try and take over mosques around the country (in violation of the 1991 Places of Worship Act) and sent a message against communal polarisation, but oral comments by the bench actually exacerbated the problem.
The real irony is that Sharma's comments may never have been made if the Supreme Court had bothered to actually continue the case brought to it in 2020 asking for guidelines on hate speech on TV channels, in the context of Sudarshan News' disgraceful 'UPSC Jihad' conspiracy theory.
Justice DY Chandrachud seemed like he was taking up the case with some seriousness, but it has been ignored for over 20 months now after the central government dissembled and instead insisted it was digital media houses that needed to be dealt with.
The rabid way in which TV channels demonised the Tablighi Jamaat in the early days of the coronavirus pandemic had also been taken to the Supreme Court, but despite multiple hearings where the judges made stern comments about the problem of communalisation of news, the Supreme Court failed to pass any actual orders or lay down any guidelines.
A fresh petition had also been filed in the Supreme Court in late 2021 observing the constructive violence against Muslims created by calls for economic boycotts and hate speech on TV channels, but once again, the court failed to do anything.
As a result, this newfound righteous indignation of the court in Nupur Sharma's case is a little hard to swallow.
That the comments on Friday also came from the same bench which had been criticised for its strange orders in the last few days that had led to the fall of the government in Maharashtra, should also not be ignored.
At best, we can hope that this newfound indignation about hate speech is the start of a new era when the court will take the matter seriously.
However, even if this were true (which is unlikely, to be brutally honest), the fact that it comes along with a wilful disregard for relevant precedent and the law, means that this is no cause to celebrate the Supreme Court's actions.