Musings on the Supreme Court-V Narasimhan Vijayaraghavan Contextually read how Supreme Court calmly chose to expunge the remarks in State of Uttar Pradesh vs Mohamed Naim on 15th March, 1963. “If there is one principle of cardinal

Musings on the Supreme Court-V
Narasimhan Vijayaraghavan

Contextually read how Supreme Court calmly chose to expunge the remarks in State of Uttar Pradesh vs Mohamed Naim on 15th March, 1963.
“If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself ; (b) whether there is evidence on record bearing on that conduct justifying the remarks ; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.
In the case before us the learned judge chose to make sweeping and general observations against the entire police force of the State. The case before him related to only one police officer, Mohammad Naim, about whose conduct the learned judge was undoubtedly justified in making adverse remarks. The learned Judge himself realised that the remarks which he had made were much too general and sweeping in character, because in his later order he said that the remarks were meant for the police force in Uttar Pradesh only and he further said he would have expunged the remarks under the head (a) referred to earlier, if the party aggrieved had come before him. We consider that the remarks made by the learned judge in respect of the entire police force of the State were not justified on the facts of the case, nor were they necessary for the disposal of the case before him. The learned judge conceded that the general remarks he made were not based on any evidence in the record; he said that he drew largely from his knowledge and experience at the Bar and on the Bench. Learned counsel for the appellant has very frankly stated before us that the learned judge ….”
What sobriety in the language. The State was aggrieved with the observations made by the learned judge. Possibly widely reported demeaning the Police force in the eyes of the public. As Louis Nizer, the Jewish giant attorney in the USA said.
”The publication of strong words is harmful enough. I have always advised my clients not to be too sensitive for it harms them more to keep the issue boiling. But that is on defamation at the individual level. But when officials in power use the might of their pen to score pungent points, it is a different ball game.”

Read Nizer in tandem with Naim, you get the message. The 5 Judges’ (S K DAS, A K .SARKAR, K N .WANCHOO, K C GUPTA, K.C. S.DAS) went on to say

KC Das Gupta AK Sarkar J

KN Wanchoo SK Das
“Learned counsel for the appellant has very frankly stated before us that the learned judge has had very great experience in the matter of criminal cases, and was familiar with the method of investigation adopted by the local police. He has contended, however, that it was not proper for the judge to import his personal knowledge into the matter. We do not think that in the present case we need go into the question as to the extent to which a judge or Magistrate may draw upon his experience in assessing or weighing evidence or even in judging the conduct of a person. We recognise the existence of exceptional circumstances in a case where the judge or Magistrate may have to draw upon his experience to determine what is the usual or normal conduct with regard to men and affairs. We say this with respect, but it appears to us that in the present case even allowing’ for the great experience which the learned judge had in the matter of criminal trials, his statement that “there was not a single lawless group in the whole country whose record of crime came anywhere near the record of that organised unit which is known as the Indian Police Force” was wholly unwarranted and, if we may say so, betrayed a lack of judicial approach and restraint. The learned judge referred to no material on which this observation was based, nor did he say that his experience of criminal trials gave him an occasion to compare the records of crime of various lawless groups in the State vis-a-vis the Police Force. To characterise the whole Police Force of the State as a lawless group is bad enough ; to say that its record of crime is the highest in the State is worse and coming as it does from a Judge of the High Court, is sure to bring the whole administration of law and order into disrepute. For a sweeping generalisation of such a nature, there must be a sure foundation and the necessity of the case must demand it. We can find neither in the present case. We think that the State Government was justifiably aggrieved by such a sweeping remark. Similar in nature is the remark about the stinking of “every fish in the police force barring, perhaps, a few.” The word “perhaps” seems to indicate that even about the few, the learned judge had some doubt. We consider that these sweeping generalisations defeat their own purpose. They were not necessary for the disposal of the case against Mohammad Naim. It would have been enough for the learned judge to say that when a large number of police officers were resorting to an objectionable method of investigation, it was unnecessary to pick out one petty officer and prosecute him for doing what several others had done with impunity, It was wholly unnecessary for the learned judge to condemn the entire police force and say that their record of crime was the highest in the country. Such a remark instead of serving the purpose of reforming the police force, which is the object the learned judge says he had in mind, is likely to undermine the efficiency of the entire police force. We think that in his zeal and solicitude for the reform of the police force, the learned judge allowed himself to make these very unfortunate remarks which defeated the very purpose he had in mind. Having said all this, we must add, lest we be misunderstood, that the conduct of Mohammad Naim and officers like him deserves the severest condemnation, and the learned judge rightly observed that such conduct required very serious notice by superior officers of the Police. It is difficult to avoid the reflection that unless an example is made of such officers by taking the most stringent action against them, no improvement in police administration is possible. For the reasons given above, we have come to the conclusion, a conclusion which justice demands, that the present case is one of those exceptional cases where the inherent jurisdiction of the court should have been exercised and the remarks earlier referred to as (a), (b) and (c) should have been expunged. We accordingly allow the appeal and direct that the aforesaid remarks do stand expunged from the order of the learned judge dated August 4, 1961.”

The US Supreme Court judgments are full of such passages. In fact, there is a method to their approach.Unlike before the Indian Supreme Court or before any other Supreme Court in any democratic country, before the SCOTUS, filings take place every day of the week. Hundreds and thousands get filed. The cases are not numbered and listed for hearing and the advocates required to convince the judges of a substantive cause. The procedure is totally different, uniquely evolved by SCOTUS for itself. And The Nine always sit together to decide the case.

The Supreme Court decides to hear or reject a case based on the writs of certiorari which is a request for the Supreme Court to order the records of the lower courts in order to review. All petitions must meet two criteria. The first is that the case must come from an US court of appeal, Military court of appeal, district court, or state court of last resort. Secondly the case must involve a federal question. Clerks review the writs of certiorari amongst other clerks and then to the justices office. From there the cases are put on to a discussion list and a dead list. The justices debate and use the rule of four to vote which case to hear. Some cases are selected over others because they had certain characteristics. Which include federal government asking for review, case involves conflict in the court of appeals, case presents a civil right or civil liberty question, case involves the ideology of the justices, and the case has significant social or political interest. Once a case is accepted lawyers begin to write their argument with added changes that would help the court find favor in their client. Then oral arguments begin in which there are allowed a half hour to present the case, and answer questions from the bench. After voting and the justices have made a decision they must make a formal opinion of the court.

In the case of our Supreme Court or any other Supreme Court, they meet to debate, discuss to decide. At times, the Judges may choose to write…….
(Author is practising advocate in the Madras High Court)