Tessta
Setalvad & Anr Vs. State of Gujarat & Ors [2004] Insc 251 (12 April 2004)
Doraiswamy
Raju & Arijit Pasayat.
(Arising
out of SLP (Crl.) Nos. 530-532/2004) ARIJIT PASAYAT,J
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 27th February, 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
anti-fundamentalists and public activists with avowed object of helping victims
of communal violence. Their main and sincere objective is to maintain and
preserve 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 Court in the case commonly known
as "Best Bakery case" also approached the appellants and they 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.
Grievance
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 judgment,
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 Sahejadkhan was
also sworn before the Notary Public at Mumbai whereas this witness resides at Vadodara.
From Para-22 of this affidavit it appears that an attempt is made by the journalists/human
rights activists and advocate Teesta Setalvad 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 judgment, they fell in the hands of some, who
prefer to remain behind the curtain.
x x x
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 loss
to the State, but to create rift between the two communities and spread hatred
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.
x x x
Instead of that, there are some persons for their petty benefits, trying to add
the fuel to the fire, which is already extinguished, 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 but also in the world that the Gujarat is a terrorist State, which is factually wrong.
x x x 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 been said 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 and Ms. 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
basic and vitally essential tenet of 'Rule of law', that no one should be
condemned unheard and risk themselves to be criticised 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
judgments, 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 are temples 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 phantasies. 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 1963 SC 1728] this Court seeking through Gajendragadkar.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
appeals 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 be
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 of a detached atmosphere of the
higher courts to think coolly and decide patiently. Every error, however, gross
it may look, should not, therefore, be attributed to improper motive." 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
refurbished 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 possibly
have crept in the findings or orders of courts at the lower tiers. Such powers
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 in the judgment 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
judgment of the High Court, and consequently must be treated as having never
existed or being part of the High Court judgment. The decision in this case, is
confined to the claim of the above appellants only and nothing to do with the
claims of other before the High Court and this Court in the other related
appeals.
The
Appeals are allowed to the extent indicated above.
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