Holding

Observations made by the High Court against non‑parties, lacking relevance and violating natural justice, must be expunged and the decision is confined to the appellants' claim.

Summary

The appellants, human‑rights activists including Teesta Setalvad, challenged certain remarks made by the Gujarat High Court in its judgment on the Best Bakery case, where the court disparaged the activists' credibility without giving them an opportunity to be heard. They sought deletion of those observations on the ground that they were irrelevant, violated natural justice and judicial ethics. The Supreme Court held that courts must not make adverse comments about persons who are not parties to the proceedings unless such remarks are essential to the decision, and that the High Court’s observations breached the rule of law and the principle that no one should be condemned unheard. Consequently, the Court ordered that the offending portions be expunged and treated as never part of the High Court judgment. The appeals were partly allowed, limited to the claim of the appellants.

Issues considered

Whether a High Court may make adverse observations about the credibility and bonafides of persons who are not parties to the proceedings without affording them a chance to be heard.
Whether such observations violate the principles of natural justice and judicial ethics.
Whether the offending observations should be expunged from the judgment.

Subjects

expungementjudicial ethicsnatural justicehigh court observationsnon‑partiesBest Bakery casehuman rights activists

Judgment

A TESSTA SETALVAD AND ANR.
v. _,
STATE OF GUJARAT AND ORS.

APRIL 12, 2004

B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Expunging of certain observations of High Court-Best Bakery case on
communal carnage-Judgment oftrial Court-Challenge to-Appellants/human •
.J..
C right activists rendered legal assistance to aggrieved parties-Disposing of
the appeals, High Court casting aspersion on credibility and bonafides of
appellants/human rights activists without affording them an opportunity to
defend-Appeal for deletion of offending remarks-Held: No one should be
condemned unheard-Judges are not allowed to violate judicial norms and
ethics to render the decision vulnerable for challenge/criticism-Uncalled for
D observations on the professional competence ofa counsel/any person/authority
should not be made unless absolutely necessary for deciding the case-Since
the observations/criticism made by the High Court not relevant to the subject
A,
matter of dispute, it is expunged from the judgment-Decision confined to
claims of appellants only-Directions issued.

E Appellants-Advocates, human rights activists, had rendered legal
assistance to the persons aggrieved by the verdict of trial Court in the
"Best Bakery case" on alleged communal carnage in the State of Gujarat.
High Court, while disposing of the appeal in the said matter, cast serious
aspersions on their credibility and bonafides without even providing them
F an opportunity to defend. Hence the present appeals for deletion of the
offending remarks from the judgment of the High Court.
,.J\
Partly allowing the appeals, the Court

HELD: I.I. It is beyond comprehension as to how the Judges in the
G High Court could afford to overlook basic and vitally essential tenet of
"Rule of Law'', that no one should be condemned unheard and risk
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 do not prima facie appear to have any "'.
relevance to the subject matter of dispute before the High Court. Time
H 1042
TESSTA SETALVAD v. STATE OF GUJARAT 1043
and again this Court has deprecated the practice of making observations A
·-· in judgments, unless the persons in respect of whom comments and
criticism were being made were parties to the proceedings and 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 B
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, anct 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.
(1046-F, G, H; 1047-A( C
1.2. 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.
Uncalled for observations on the professional competence or conduct of a
counsel, and any person or authority or harsh or disparaging remarks D
should not be made, unless absolutely required or warranted for deciding
the case. Even while dealing with recalcitrant subordinate judicial officers,
this Court has advised restraint. Hence, the observations of the High
Court, as against the appellants, shall stand expunged and deleted from
the judgment of the High Court, and consequently must be treated as E
having never existed or being part of the High Court judgment. The
decision in this Case is confined to the claim of the appellants only.
(1047-C, E, F; 1049-B, CJ

lshwari Prasad Misra v. Mohd. Isa, AIR (1963) SC 1728; K.P. Tiwari
v. State of MP., (1994( Suppl. I SCC 540 and Bra} Kishore Thakur v. Union F
of India and Ors., (1997] 4 SCC 65, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 443-
445 of 2004.

From the Judgment and Order dated 26.12.2003 of the Gujarat High G
Court in Crl. A. No. 956/2003 with Crl. M.A. No. 7677, Crl. M.A. No. 9825
of 2003.

Kapil Sibal, Mihir Desai, P. Ramesh Kumar and Ms. Apama Bhat for
t~e Appellants.

H
1044 SUPREME COURT REPORTS [2004] 3 S.C.R.

A V. Madhukar and Ms. Hemantika Wahi for State of Gujarat.

Sushi! Kumar, Dr. Kailash Chand, Adolf Mathew and Sanjay Jain for
the Respondents.

The Judgment of the Court was delivered by
B
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. f
767712003 and 9825/2003 are questioned by the appellants.
c According to them, the High Court has directly and/or at any rate
indirectly cast aspersions on their credibility and bonajides 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.
D
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
E situation and also met the riot-affected persons. They helped the victims in
lodging F!Rs, 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 finnly
under the Constitution of India, 1950 (in short the "Constitution"), the supreme
F 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
G 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
H given an opportunity to justify their action. Principles of natural justice were
TESSTA SETALVADv. STATE OF GUJARAT [PASAYAT, J.) 1045
said to have been grossly violated. A
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
Peace petitioner before the Supreme Court in this· case, is situated at B
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
Peace to have parallel investigating agency, whereas the statutory C
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 D
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 .
•
xx x

Ce11ain elements failed everywhere, at all levels, and to obstruct the E
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 hy the Apex Court. However,
because of the ex parte ad interim order, they were successful in F
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.
G
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.
H
1046 SUPREME COURT REPORTS (2004] 3 S.C.R.

A This time, rarget 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.
B
xx 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
t
situation tense. They did not know that great hann they are causing
c 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.
D xxx

Para 2 I - 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
E 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 tht
F 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
G approach and/or render their decisions vulnerable for challenge on account of
violating judicial nonns 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,
H
TESSTA SETALVAD v STATE OF GUJARAT [PASAYAT. .I.] 1047
and further were granted an opportunity of having their say in the matter, A
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 bonajides or credibility of any person or
their actions. Judicial decorum requires dispassionate approach and the B
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 C
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. D
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 E
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 F
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 G
Court has advised restraint.

As far back as in the year 1963 in /shwari Prasad Misra v. Mohd. Isa,
AIR (1963) SC 1728 this Court speaking 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 H
1048 SUPREME COURT REPORTS (2004] 3 S.C.R.

A 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 MP., [1994] Suppl. I SCC 540 this Court made the following
observations in this context:

B "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
c 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 atmospherP, 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
D 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 and Ors., [1997] 4 SCC 65:
E
"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
F 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
G 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
H hands by using intemperate language and by casting aspersions against
TESSTA SETALVADv. STATE OF GUJARAT [PASAYAT. J.) 1049

lower judiciary. It is well to remember that a judicial officer against A
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."
B
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.

Jn view of the aforesaid we direct that the observations of the High
Court, as against the appellants quoted above shail stand expunged and deleted C
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.

S.K.S. Appeals partly allowed.