Tuesday 17 April 2012

SC Expunge Adverse Comments against persons

Adverse comments against persons who were not before court without granting them opportunity of having their say and when observations are not necessary for decision of case are most uncalled for. Adverse remarks against journalist and advocate are expunged.
CRIMINAL APPEAL Nos. 443-445   /2004
(Arising out of SLP (Crl.) Nos. 530-532/2004)
Tessta Setalvad & Anr. ………. Appellants
State of Gujarat & Ors. ………. Respondents
Leave granted,
In these three appeals, certain observations made by the High Court of
Gujarat at Ahmedabad in Crl. A.     No. 956/2003 with Crl. Misc. Appln. Nos.
7677/2003 and 9825/2003 are questioned by the appellants.
According to them, the High Court has directly and/or at any rate indirectly
cast aspersions on their credibility and bonafides in helping certain persons to
approach this court for redressal of their grievances.  The case before the
Gujarat High Court related to an alleged communal carnage on 27

2002.According to the appellants, being human rights activists, they wanted to
find out what is the truth and in the process, though after conclusion of the trial, it
was reliably felt by them on the basis of verifications made that truth has been
the resultant casualty.  They had made detailed study of the situation and also
met the riot-affected persons.  They helped the victims in lodging FIRs, and
setting up legal aid clinics for the affected victims.  They claim to be antifundamentalists and  public activists with avowed object of helping victims of
communal violence.  Their main and sincere objective is to maintain and preseve
the secular image of the Nation, secured firmly under the Constitution of India,
1950 (in short the “Constitution”), the supreme law of the land.  Certain persons,
who were not happy with the verdicts rendered by the Trial Coourt in the case
commonly known as “”Best bakery Case”” also approached the appellants and
th;e;y; ;helped them in obtaining legal assistance.  Unfortunately the High Court,
while dealing with the appeal filed by the State of Gujarat, against the acquittal of
the accused persons and other connected cases made some caustic
observations casting serious aspersions on their bonafides and has used strong
words like “”super investigators””, “”anti-social”” and “”anti-national”” elements.
Grivevance is made that not only were the observations unnecessary and
contrary to the truth  but also were made against persons who were not even
given an opportunity to justify their action. Principles of natural justice were said
to have been grossly violated.Prayer is made, therefore, for deletion of the offending portions from the
judgement, which according to the appellants are as follows:
In Para 15 – “”It is stated at the Bar that the Citizens
for Justice and Piece petitioner before the Supreme
Court in this case, is situated at Mumbai.  Like other
affidavits, this affidavit of Sahejad khan was also
sworn before the Notary Public at Mumbai where as
this witness resides at Vadodara.  From Para-22 of
the affidavit it appears that an attempt is made by the
journalists/human rights activists and advocate
Teesta Setavad and Mihir Desai, respectively, of the
Citizens for Justice and Piece to have parallel
investigating agency, whereas the statutory authority
to investigate any case is Police, CBI or any other
agency established under the Statute.  We do not
know how far it is proper but we can certainly state
that it is not permissible under the law. 
Para 20 – “”This very witness when examined before
the court seems to have stated the truth before the
court, but unfortunately, it seems that for some
reasons, after the pronouncement of the judgement,
they fell in the hands of some, who prefer to remain
behind the curtain.
Certain elements failed everywhere, at all levels, and
to obstruct the development and progress of the State
and trying to misuse the process of law, so far they
have not fully succeeded.  Sometime back in the
name of environment, matter was filed before the
Apex Court in Narmada matter, which was dismissed
by the Apex Court. However, because of the ex parte
ad interim order, they were successful in causing
huge loss, running into thousands of crores of rupees
to the State because of the delay in construction of
the dam.  Ultimately, such huge loss had to be
suffered by the people of the State for no fault of their. 
Gujarat is very much part and parcel of our Nation
and any loss to the State means loss to the Nation.
Once again, almost similar attempt is made not only
to cause indirect financial lose to the State, but to
create rift between the two communities and spreadhatred in the people of the State.  Financial loss can
be recovered at any time, but it is very difficult to
rebuild confidence, faith and harmony between
people of the two communities.  This time, target is
none else but the judiciary of the State and the
system as a whole which is really a matter of grave
concern.  Most unfortunate part of it is that, some
people within the State and the Nation, without
realizing the pros and cons of it, unnecessarily giving
undue importance to such elements, who are
misusing poor persons like Zahira and others.
Instead of that, there are some persons for their petty
benefits, trying to add the fuel to the fire, which is
already extinghished, and keep the situation tense. 
They did not know that great harm they are causing to
the state and the Nation.  One should not cut the
branch on which sits.  Nation will suffer if Gujarat is
made to suffer.  It is most unfortunate that attempt is
made to create a false impression not only in the
other States imprssion not only in the other States but
also in the world that the Gujarat is a terrorist State,
which is factually wrong.
Para 21- It is most unfortunate that only few handful
of people are indulging in dirty tactics and wrongly
defaming the States and its people for ulterior motives
and reasons.  Much could have beensaid about such
elements, but it would have been once again used as
publicity, therefore, best thing is to simply ignore
them.  Even a note taken of this element amounts to
giving some importance, which they do not deserve it
at all.
We have heard Mr. Kapil Sibal, learned Senior Counsel for the appellants
andMs. Hemantika Wahi, learned counsel for the State of Gujarat.  It is not in
dispute and the records also reveal that the appellants were not parties in the
case before the High Court.  It is beyond  comprehension as to how the learned
Judges in the High Court could afford to overlook such a basis and vitally
essential tenet of “Rule of Law” that no one should be condemned unheard andrisk themselves to be criticized for injudicious approach and/or render their
decisions vulnerable for challenge on account of violating judicial norms and
ethics.  The observations quoted above do not prima facie appear to have any
relevance to the subject matter of dispute before the High Court.  Time and 
again this court has deprecated the practice of making observations in
judgement, unless the persons in respect of whom comments and criticisms were
being made were parties to the proceedings, and further were granted an
opportunity of having their say in the matter, unmindful of the serious
repercussions they may entail on such persons.  Apart from that, when there is
no relevance to the subject matter of adjudication, it is certainly not desirable for
the courts to make any comments or observations reflecting on the bonafides or
credibility of any person or their actions.  Judicial decorum requires dispassionate
approach and the importance of issues involved for consideration is no
justification to throw to winds basic judicial norms on mere personal perceptions
as saviours of the situation.
Learned counsel for the State of Gujarat also cannot  successfully
substantiate their relevance or necessity for the case on hand and virtually had to
concede that the observations really have no proximate or even remote link with
the subject matter of adjudication which was involved in the cases before the
High Court.
Observations should not be made by Courts against persons and
authorities, unless they are essential or necessary for decision of the case.  Rare
should be the occasion and necessities alone should call for its resort courts aretemples of justice and such respect they also deserve because they do not
identify themselves with the causes before it or those litigating for such causes. 
The parties before it and the counsel are considered to be devotees and pandits
who perform the rituals respectively seeking protection of justice; parties directly
and counsel on their behalf.  There is no need or justification for any unwarranted
besmirching of either the parties or their causes, as a matter of routine.
Courts are not expected to play to the gallery or for any applause from
anyone or even need to take cudgels as well against any one, either to please
their own or any one’s fantasies.  Uncalled for observations on the professional
competence or conduct of  a counsel, and any person or authority or harsh or
disparaging remarks are not to be made, unless absolutely required or warranted
for deciding the case.
Even while dealing with recalcitrant subordinate judicial officers, this court
has advised restraint.
As far back as in the year 1963 in Ishwari Prasad Misra V. Mohd. Isa
[AIR SC 1728] this court seeking through Rajendragadkar. J. (as he then was) in
the context of dealing with strictures passed by the High Court against one of its
subordinate judicial officers stressed the need to adopt utmost judicial restraint
against using strong language and imputation of corrupt motives against lower
judiciary because the judge against whom imputations are made had no remedy
in law to vindicate his position.  In K.P. Tiwari V. State of M.P. [1994 Suppl. (1)
SCC 540] this court made the following observations in this context:“”The higher courts every day come across orders of
the lower courts which are not justified either in law or
in fact and modify them or set  them aside.  That is
one of the functions of the superior courts.  Our legal
system acknowledges the fallibility of the Judges and
hence provides for appeal and revisions.  A Judge
tries to discharge his duties to the best of his capacity. 
While doing so  sometimes, he is likely to err…….It
has also to the remembered that the lower judicial
officers mostly work under a charged atmosphere and
are constantly under a psychological pressure with all
the contestants and their lawyers almost breathing
down their necks- more correctly up to their nostrils. 
They do not have the benefit or a detached
atmosphere of the higher courts to think coolly and
decide patiently.  Every error, however, gross it may
look should not therefore, he attributed to improper
We also extract below the observation of this Court in  Braj Kishore
Thakur V. Union of India & Ors. [1997 (4) SCC 65]
“”Judicial restraint is a virtue.  A virtue which shall be
concomitant of every judicial disposition. It is an
attribute of a Judge which he is obliged to keep
refurnished from time to time, particularly while
dealing with matters before him whether in exercise of
appellate or revisional or other supervisory
jurisdiction. Higher courts must remind themselves
constantly that higher tiers are provided in the judicial
hierarchy to set right errors which could possible have
crept in the findings or orders of courts at the lower
tiers.  Such power are certainly not for belching
diatribe at judicial personages in lower cadre.  It is
well to remember the words of a jurist that “a judge
who has not committed any error is yet to be born.”
No greater damage can be caused to the
administration of justice and to the confidence of
people in judicial institutions when Judges of higher
courts publicly express lack of faith in the Subordinate
Judges.  It has been said, time and again, that
respect for judiciary is not in hands by using
intemperate language and by casting aspersions
against lower judiciary.  It is well to remember that a
judicial officer against whom aspersions are made inthe judgement could not appear before the higher
court to defend his order. Judges of higher courts
must, therefore, exercise greater judicial restraint and
adopt greater care when they are tempted to employ
strong terms against the lower judiciary.””
The said observations, would in our view, apply with equal force to all
such parties who were not before court and not merely could not be before the
court in the proceedings concerned.
In view of the aforesaid, we direct that the observations of the High Court,
as against the appellants quoted above shall stand expunged and deleted from
the judgement of the High Court, and consequently must be treated as having
never existed or being part of the High Court judgement.  The decision in this
case, is confined to the claim of the above appellant only and nothing to do with
the claims of other before the High Court and this court in the other related
The Appeals are allowed to the extent indicated above.
New Delhi.
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