Senior counsel Gopal Subramanium, appointed by the court for its assistance, said this during the hearing on a petition by the Central Bureau of Investigation (CBI) seeking the transfer of trial outside Gujarat in the abduction and staged shootout killing of Sohrabuddin Sheikh by state policemen.
“The mandate of the rule of law is objectivity and fairness coupled with courage. There is insignia of objectivity in the due process of law,” Subramanium told an apex court bench of Justice Aftab Alam and Justice R.P. Desai.
Sohrabuddin Sheikh and his wife Kausarbi were taken off from a bus on the outskirts of Ahmedabad Nov 23, 2005. In the wee hours of Nov 26, 2005, Sohrabuddin Sheikh was killed in a staged shootout. Subsequently, Kausarbi went missing.
Subramanium told the court that Kausarbi was not a history-sheeter, extortionist and a criminal. “How did she disappear,” he asked.
He told the court that the substance of the matter for the consideration of the court was whether the due process of law mandated under the constitution was followed. “It could not be facial or formal compliance but substantial compliance,” he told the court.
Asserting that police officers would not have taken the risk of killing Sohrabuddin “unless the motive was very strong”, Subramanium said that the Gujarat government should distance and separate itself from those accused of committing abuse of law.
“The state’s primary function is to ensure and assure that such abuse of power does not have its sanction and protection,” Subramanium said adding that “cardinal principle of rule of law is that the state can’t stand up and say that this (unlawful killing) is not a breach of fundamental right”.
Additional Solicitor General Indira Jaising contested the state government’s plea that apex court judgment transferring investigation into the Sohrabuddin Sheikh case to the CBI was in breach of natural justice, suffered from bias and resulted from a conspiracy.
She told the court that “when the accused are high ranking police officer, it has been the tradition of the apex court to transfer investigation to other agencies”.
“No case is made out for the recall of the transfer (of CBI investigation) order and it would not be in public interest,” Jaising told the court.
Taking a dig at Ram Jethmalani, who appeared for accused former Gujarat minister Amit Shah, for attributing bias, Jaising told the court “how it lies in the mouth of the counsel (to say) that there was a conspiracy on the part of the judge to handover the investigation to the CBI”.
Jethmalani told the court that the transfer of trial should only be done in “more rare of the rarest case”.
Jethmalani told the court that the transfer of trial outside Gujarat could take place only when “the legitimacy of entire judiciary (in the state) is under challenge and that challenge is acceptable to the court”.