Earlier this month, the Supreme Court issued an order quashing all FIRs registered across India in connection with the student protest led by the Cockroach Janata Party (CJP).
It permitted the Central government and the Delhi Police to register fresh FIRs with respect to 2,873 individuals having serious criminal antecedents. While the order largely brought to a close criminal proceedings arising out of the protests, its reasoning raises several constitutional questions.
The Court’s order was passed in applications moved by the Delhi Police and other State governments, which sought the quashing of FIRs registered between July 20-25, during the student protests. Under ordinary circumstances and procedure, a party seeking the quashing of an FIR would be required to approach the respective High Court. However, in this case, the State approached the Supreme Court directly and sought invocation of its powers under Article 142 of the Constitution.
The provision enables the Court to pass any order necessary “for doing complete justice” in a matter pending before it. In the past, the Court has used this extraordinary power to quash criminal proceedings, provided the principles governing the exercise of this power are complied with. These principles require that while exercising the power to quash criminal proceedings, the Court must bear in mind the nature and effect of the offence on the conscious of society, the seriousness of the injury, the voluntary nature of the compromise between the accused and the victim, and the conduct of the accused. The Court has also cautioned that the power must be exercised carefully and, in cases where High Courts have exercised similar powers mechanically and without an application of mind, it set aside their orders.
A good example of its use comes from the judgment in Ramgopal and Ors. v. State of Madhya Pradesh (2021), authored by Justice Surya Kant himself. In this case, the appellants were convicted for offences under the Indian Penal Code (IPC) and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. They sought quashing of proceedings by invoking Article 142. The Court undertook a detailed discussion of the above-mentioned principles, applied them to the proceedings and, thereafter, quashed them.
The present order departs from this orderly approach. First, the Court makes no mention of these principles or how they are satisfied so as to warrant quashing. The absence of such an exercise prima facie suggests a mechanical quashing of the FIRs. Second, it undertakes no substantive discussion explaining its rationale for exercising its powers under Article 142. An explanation is found in paragraph 12, where the Court cites the commitments made by all stakeholders and “the future prospects of the young protesters”. Respectfully, neither consideration explains the legal basis for exercising Article 142 to quash the FIRs. Even if these considerations are relevant to the exercise of the Court’s equitable powers, their relevance ought to have been elaborated upon, particularly when the Court was passing an unusual omnibus order quashing FIRs en masse.
A possible, although weak, saving grace is the Court’s direction that the order shall not be treated as a binding precedent, thereby seeking to confine it to the peculiar circumstances of the case. However, experience suggests that once an exceptional remedy is granted by the Court, it is like a genie out of the bottle. A direction to not treat it as a precedent does not necessarily prevent similarly placed parties from approaching the Court in the hope of securing the same relief. It was, therefore ,all the more important for the Court to clearly articulate the exceptional nature of the case, the legal basis for the relief granted and the limits within which such power may be exercised, both to settle the law and to avoid further litigation.
The breadth of the order is unusual, for it quashes all FIRs registered with respect to incidents arising from the protests and prohibits the authorities from registering fresh ones, except in respect of the 2,873 individuals identified in the order. A direction of this nature effectively collapses the distinction between different types of offences, some of which may be non-compoundable and involve conduct that the law treats as having a wider impact on society, rather than merely constituting a private dispute. The courts have also maintained this distinction while considering the quashing of criminal proceedings, permitting greater latitude where offences have an overwhelmingly civil or private character, while adopting a considerably more circumspect approach where the offences alleged are heinous, serious, or have a wider societal impact.
The application filed by the Delhi Police itself highlighted that some of the FIRs included serious offences such as rioting, attempt to murder and robbery. By quashing all of them irrespective of the offences alleged, the Court effectively collapsed these distinctions and the principles ordinarily governing quashing.
The proceedings also highlight a somewhat different role assumed by the Court - one extending beyond traditional adjudication of the legal questions before it, towards facilitating a resolution between the parties. This was evident from the day the applications were first mentioned by the Solicitor General, when the Chief Justice remarked that “if the parties are reconciling, we have no difficulty.”
This approach continued during the hearing. The Court permitted a representative of the CJP to read out a statement recording that, in light of the assurances given by the government and the “judicial sanctity” accorded to them, the CJP has decided to withdraw its call for a march on September 5. The order subsequently took note of the commitments made by the CJP, along with those made by the Union and the State governments, while explaining its decision to invoke Article 142. It also made the relief granted subject to the parties honouring the statements and commitments made before the Court.
This suggests that the Court was not merely adjudicating whether the legal requirements for quashing were satisfied, but was also facilitating the resolution of a wider dispute between the parties – the proposed march on September 5. There is nothing inherently objectionable about a court attempting to facilitate an amicable resolution. However, the difficulty here is that the subject matter of the proceedings was the quashing of FIRs and it is difficult to see what bearing the CJP’s subsequent decision to withdraw a proposed protest could have on that legal determination.
Had the Court merely recorded the CJP’s statement as a subsequent development, little may have turned on it. However, the order itself refers to the commitments made by the stakeholders, including the CJP, as part of its reasons for exercising its powers under Article 142. In doing so, the Court donned two hats, performing the roles of both adjudication and mediation, without adequately explaining how considerations relevant to the latter could inform the former.
The order in this matter is probably the first of its kind and historic, for it granted significant relief to students who had prima facie faced considerable brutality at the hands of the police. This was all the more reason why the order should have been well-reasoned, arrived at by applying settled legal principles and framed in a manner that left little scope for disagreement over its legal basis. Unfortunately, it failed to adequately do so.
Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.
Views are personal.