http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.)  443-445 of 2004

PETITIONER: Tessta  Setalvad & Anr.

RESPONDENT: State of Gujarat & Ors.

DATE OF JUDGMENT: 12/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

(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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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.