If the BJP leaders are really smart and intelligent, they can turn the Congress, the CBI and the Supreme Court’s witch hunt into a kind of the 1945 INA trials at the Red Fort that shook the whole nation and led to the Royal Navy Revolt by the Indian marines, and the subsequent independence of our nation from the British rule. 

1. The very idea is antithetical to the federal principles enshrined in our Constitution. The Constitution says that law and order is a state subject. How can the SC take away this function from an elected government in absolutely normal circumstances? How can the SC even appoint an investigating agency on its own without the state’s concurrence, something even the Union Government cannot do? In fact, the Gujarat Government will be well within its rights to not let the SC interfere in the functioning of the state government and refuse to abide by its unconstitutional pronouncements. I suggest that the Gujarat Assembly boldly rebukes and censures the SC judges who have colluded with the Delhi rulers. 

2. How can the SC comment on the quality and competence of the state’s prosecuting agency and use it as an excuse for taking over the prosecution in its own hands? Doing so will amount to not allowing the defence to do its job and prejudging the accused as guilty. It is the job of the defence to punch holes in the prosecution’s case. Here, the SC is doing that job and prompting the prosecution to plug those holes to ensure conviction of the accused. In other words, as the zealous supervisor of the prosecuting agency, it has become a super-prosecutor by default. It is no more a court of justice. It has become a police station for exclusive registration of Gujarat related cases

3.  Suppose the SC agrees to transfer the case at the request of the CBI, will this not mean facilitating the task of the prosecution? What if the CBI wants a particular judge to be appointed in the case to facilitate the prosecution’s work? Will the SC oblige it? Is it supposed to do such things? How can a referee make things easier for one party to score a goal, while putting hurdles in the way of the other team? What if the accused want the trial to be held in Gujarat or in other BJP-ruled states? What rules, conventions, and established procedure will the SC follow to appear fair when none exist? The SC has no ground to take the case out of Gujarat unless there is a complete breakdown of constitutional machinery in the state. Is that the case? And how will that be determined? There is an established procedure to be followed in such cases. The SC has no locus-standi here; it cannot even suggest anything like this and if it does, it will be rebuked by the legislature for its arrogant imperious attitude. It had tried once to encroach upon the Loksabha speaker’s territory, and a stern rebuke by Somnath Chatterji was good enough to make it beat a humiliating retreat. The constitution has not given it the powers to dismiss an elected state government. Only the Parliament and the President can do that, by following certain processes, in extra-ordinary situations like an armed rebellion or a total break-down of the law and order. None of this applies to Gujarat, the best managed province of India.  

4. The SC should strongly rebuke the CBI for having dared to suggest such a course and for seeking special favours from it in a normal fake encounter case, on grounds that are obviously prejudicial to the defence’s case. The unusual CBI request is an affront to the SC itself. Not only this, the CBI and its officers have also dared to brand an elected state government and its leader as rogue and has committed the contempt of Gujarat courts, the state government, and of the Legislature by doubting their competence and integrity. How can an investigating and prosecuting agency question the competence of a court even before the case is committed to trial? I can question the SC and its judges only after they have either pronounced or given an order. I cannot doubt their integrity and competence otherwise. In the meanwhile, people should file contempt petitions against the CBI this week in various Gujarat courts for having dared to cast aspersions on the competence of judiciary in Gujarat.   

5. What is the role of the Supreme Court in a democracy? It is the ultimate arbiter in a case, and not the first. If it assigns itself the lower order role of the first arbiter, it is denying an opportunity to both, the prosecution and the defence, to go into an appeal against a wrong verdict and seek its reversal or repudiation. The Supreme Court has not just set wrong precedents in all Gujarat-related cases, it has virtually blocked the path of the accused and the prosecution to seek further constitutional remedies, which is their right. It has also lowered its own prestige through its blatant bias and authoritarian arrogance. While hard-core terrorists are readily accessing such remedies, those who are accused of killing terrorists in an encounter cannot do that because the SC is directly supervising their case. One is also shocked by the ugly and unseemly alacrity and haste of the SC to virtually send an open invitation to sundry petitioners from Gujarat to approach it and directly seek legal relief and remedies. Such deliberate intervention also prejudices the lower court judges and pressures them into delivering judgements that favour the prosecution. 

6. The bias of the SC is starkly evident in the relief and courtesy it extended to the convicts of the Mumbai blasts by letting them out on bail till they got the copies of their judgements in the language of their choice, whereas it is treating the Sohrabuddin encounter accused as convicts. Moreover, why is it so eager to take up this case while thousands of cases of cold-blooded murder are pending in various courts? Its selective and irregular behaviour seriously dents its credibility and dignity. In fact, the judges who have gone hammer and tongs against the Gujarat government would have been censured and even impeached for what they have been doing had it been any other country. They are behaving like vengeful and belligerent despots. 

7. The accused in the Soharabuddin encounter case are being treated as guilty even before their trial. This is against the basic tenets of jurisprudence. The prosecuting agency is being prodded to somehow unearth or fabricate the necessary evidence to ensure the successful prosecution of the accused. It is a bizarre situation where the ultimate arbiter, the SC, is supervising, guiding, and facilitating the work of the prosecuting agency.