Supreme Court’s refusal to club all FIRs against Nupur Sharma is bad in law

Source: The post is based on the article “Supreme Court’s refusal to club all FIRs against Nupur Sharma is bad in law” published in the Indian Express on 16^th July 2022.

Syllabus: GS 2 – Structure, organization and functioning of the Executive and the Judiciary.

Relevance: To understand the issue of multiple FIRs.

News: Recently, the Supreme Court (SC) refused to consolidate multiple FIRs filed in several states against the former spokesperson of a political party for remarks against the Prophet flies.

About multiple FIRs in the present case

At least nine FIRs have been filed in multiple states. All these FIRs were filed subsequent to the filing of the FIR by the Delhi Police’s Special Cell. The date and time of the occurrence of the alleged offence are the same in all the FIRs.

All the FIRs refer to the same television debate in which the former spokesperson made the remarks against the Prophet. The sections of the Indian Penal Code are almost the same in all the FIRs.

What are the previous cases on multiple FIRs?

TT Antony vs. State of Kerala case, 2001: In this, the SC held that only the earliest information in regard to the commission of an offence could be investigated and tried.

Babubhai vs. State of Gujarat case, 2010: The Court explained that the test to determine the sameness of the offence is to identify whether “the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction”.

What are the challenges in present judgement on multiple FIRs?

The bench said that party spokespersons and journalists cannot be treated identically. The bench also said that the spokesperson has not unconditionally apologised for her remarks and her political clout is apparent from the fact that she has not been arrested despite an FIR being filed against her by the Delhi Police.

This has the following concerns,

Firstly, the Constitution does not create any hierarchical difference between journalists and ordinary citizens when it comes to the enforcement of fundamental rights. The right to approach the SC under Article 32 is in itself a fundamental right.

Secondly, seeking or tendering an apology may be a mitigating factor. But, the issue before the SC was whether to consolidate FIRs or not. Instead, the Court jumped into the merits of the case.

Thirdly, Consolidating FIRs will ensure that state actors do not abuse the statutory power of investigation. So, it is the SC which has to exercise its writ powers under Article 32 because high courts cannot transfer cases from one state to another.

Fourthly, the multiplicity of proceedings would result in a violation of the fundamental rights of the accused under Article 21 as parallel investigations might force him/her to join investigations in different police stations in different states.

At best, the former spokesperson may file an application requesting the SC to relieve her of the concession to withdraw the petition and have it re-heard on merits. But, the SC should work within the confines of judicial propriety and augment the sanctity of the institution of the SC.