S C Must Clear its Obiter Dicta Observations in Nupur’s Case

Lord Atkin has said ‘justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men. That is why the oral observations of the Supreme Court in Nupur Sharma’s Transfer Petition must be allowed to be freely commented upon by the public. In fact, the observations are not only uncalled for and unwarranted but highly disturbing. If the Supreme Court was so troubled with what Nupur Sharma had said in the heat of a TV debate, it should have been recorded in the order sheet but the SC rather preferred to lecture orally on her conduct. This obiter dicta comment ought to have been avoided by the judges because it will adversely affect Nupur Sharma in getting justice. Although obiter dicta are legally not binding on the courts below, it will certainly be cited to persuade and prejudice the mind of judges of lower court judges.

A transfer petition is normally filed by the litigants for transferring the case from one High Court or court to another High Court or court in the interest of justice and to save them from unnecessary harassment. It is filed under Article 139(2) of the Constitution of India Section 25 of the CPC and 406 of the CrPC on the expediency of justice. But here the Supreme Court’s observations in the case of the transfer petition of Nupur Sharma from different courts of the country to a competent court in Delhi have made a mockery of justice. The SC has literally pronounced the judgment without any evidence, recording of evidence or cross-examination. The judges have committed grievous injury to the dispensation of justice. If the judges were so perturbed with her statement, they should have recorded their concern in the order sheet and disallowed or dismissed the petition but their fulminations were totally unrelated to the case and if this practice is adopted by the Supreme Court, then there will be chaos in the justice delivery system.

This oral but heavily loaded political lecturing from the pulpit of the Supreme Court is a cause for huge concern for the country. If the case did not deserve to have been transferred, the court should have decided it on its merit. But it was an extraneous and off-the-tangent observation, which is bound to send a wrong message across the country. To say that Nupur Sharma was intoxicated with power is totally unbecoming of the Supreme Court because the whole country looks at it for guidance and appropriate decisions on the facts and the legal position of the case. How could be she held to be single-handedly responsible for the vitiating the atmosphere in the country or the killing of a tailor in Udaipur by Jihadists? In this manner, every Jihadi including Osama Bin Laden could blame somebody for the destruction of the twin towers in America. Kashmiri Pandits could be blamed for what happened to them in Kashmir.

The Supreme Court was to decide about the transfer of the case and not who is guilty of the killing of the Udaipur tailor. The Supreme Court has undoubtedly overreached its jurisdiction. It would do well to take up the case suo moto and remove all misunderstandings which have spread across the country by its oral observations.