The Supreme Court of India has accepted a petition by former BJP spokesperson Nupur Sharma to merge all the FIRs filed against her at various places in the country and transfer them to Delhi. A bench of justices Surya Kant and JB Pardiwala passed the order. The two Judges had earlier rejected the petition of Nupur Sharma and made problematic remarks blaming her for the beheading of Kanhaiya Lal. The bench had a change of heart after saying that Nupur Sharma had a “loose tongue”, in a span of a little over a month.

The Supreme Court bench cited the earlier order of the apex court directing merger of all FIRs against Alt News cofounder Md Zubair and transfer of cases against him to Delhi, saying the bench will follow the steps taken by the bench in the Zubair case. The Supreme Court considered the threats that Nupur Sharma continues to receive for her comments made on Times Now in June while taking the decision.

While the bench had made its intention to merge the FIRs and transfer them to Delhi at the outset itself, the West Bengal govt strongly opposed it. Senior Advocate Menaka Guruswamy representing West Bengal said that the state suffered the most as a consequence of the comments of Nupur Sharma, therefore the cases against her should be transferred to Kolkata. When the Bengal government’s request was turned down, the lawyer suggested to the court that it could form a joint SIT of Bengal police and Delhi police and then a separate SIT headed by the Supreme Court or the High Court to monitor the investigation of the first SIT. Justice Surya Kant said that an SIT headed by the HC or SC puts “undue and undesirable pressure on probe agencies”. The Judge further said that the probe agencies should have complete “independence and a dispassionate atmosphere for probe”. The West Bengal govt, persisting with their effort to get Nupur Sharma to Bengal, harked about constitutional authority and rule of law – with the Judge rejecting their argument summarily.

Essentially, after blaming Nupur Sharma when she approached the same bench to club the FIRs against her on the 1st of July, on the 10th of August, the milords changed their mind completely and granted her request, based on the judgement in the Zubair case. They also took cognisance of the threat to life she faced, that she faced on the 1st of July as well.

While supporters of Nupur Sharma rejoiced the judgement, there are important questions that need to be addressed in the light of everything that happened on the 10th of August, everything that was said and the unseen threads that remain relatively unseen.

India, a nation with no Judicial accountability

Let us consider this for a moment. On the 1st of July 2022, the very same bench that granted relief to Nupur Sharma, had said the following:

1. She has a security threat or she has become a threat to the security of the nation?
2. The way she has ignited the whole country and she has the cheek and courage to come to the court to ask for discretionary relief?
3. This lady is singlehandedly responsible for the burnings in the country.
4. This lady [has a] completely loose tongue that she keeps on making all irresponsible statements and she claims that she is a lawyer with 10 years standing? This is shameful
5. This is not the way to withdraw. She should have gone on air and apologised to the whole country (this was said right after Nupur Sharma’s lawyer said they wanted the FIRs clubbed).
6. [Refers to relevant part] It is so disturbing. This is the outcome of what happened unfortunately at Udaipur.  
7. Even if we have laid down that law, this is a fit case that we refuse to apply that law. 
8. This petition also shows her obstinate character and her arrogance that she thinks that the Courts of the Magistrate are too small for her. 
9. If you are a spokesperson, it is not a license. Sometimes powers goes to your head, people think that yes I have a backup therefore I can make any kind of statement and go scot-free.  
10.  [Sarcastically] Yes everyone has a right to speak, in a democracy, the grass has the right to grow and a donkey has the right to eat.   
11. It is not every citizen. Here also some special treatment is given to a journalist (when the Arnab Goswami judgement was cited by the lawyer)
12. When you get the FIR registered against XYZ [referring to one Mr Zubair] he is arrested immediately. Nobody has dared to touch you. It shows your clout. 
13. When the conscience of the Court is not satisfied. We must mould the law accordingly.

There were several statements made in the course of the hearing on 1st July, however, for the purpose of this article, we will focus on these 13. It must be kept in mind that these were oral observations of the Judges and they did not make it to the written order.

While on the 10th of August, the same Judges took cognisance of the threats that had accrued to Nupur Sharma, on the 1st of July, they had summarily declared that she had, instead, had become a threat to the nation by merely exercising her freedom of speech. They claimed she had a “loose tongue”, that she had set the country on fire, held her responsible for the beheading of Kanhaiya Lal almost exonerating and emboldening the Muslim perpetrators and claimed that her retraction was not good enough as she should have gone on national television to apologise to the entire nation.

Further, by declaring that they “moulded the law” because their “conscience was not satisfied”, the Judges had, rather brazenly, said that just because they did not agree with Nupur Sharma in their personal capacity (perhaps), they would refuse to apply the law equally. Dismissing the Court judgement on Arnab Goswami, they themselves raised doubts about the Judicial system when they claimed that Arnab Goswami was given “special treatment”.

“Even if we have laid down that law, this is a fit case that we refuse to apply that law”, the bench had said in its oral observations, thereby, proclaiming that as Judges of the Supreme Court, they were refusing the follow the law because of their personal opinions on the petitioner (Nupur Sharma in this case).

This was not all. Almost as a bargaining chip, the Judges in their personal capacity (since the oral observations did not make their way to the written order) proclaimed that since the AltNews co-founder Mohammad Zubair was arrested after FIRs were filed against him and she wasn’t, it shows she has “clout”.

Much has been written about how these observations were extra-judicial and how the Judges exceeded their judicial brief in making these unsavoury comments. A detailed analysis of the legal position can be read here. However, it is, for this article, safe to say that on the 1st of July, the very same judges refused to give Nupur Sharma the protection of the law, to which she was rightfully entitled, as proven by the latest judgement of the same bench.

The Bench of the Supreme Court, under the given circumstances, ideally should have explained their reasons to deny the same petition merely a month ago. Was their decision bad in law then, or is it bad in law now? Given that the law about clubbing of the FIRs has been established time and against by the Supreme Court, one knows for a fact that their judgement on the 1st of July was bad in law. If it was, should the Judges who delivered both these verdicts not be morally obligated to explain their earlier stance? If they deemed it fit to take cognisance of the threat to life today, why did they call her a “threat to the nation” then? Why did they disregard the threats that were flying her way back then? Had something happened to Nupur Sharma, would this bench take personal responsibility?

What is far more troubling, is that during the 1st July hearing, the court had specifically cited the case of Mohammad Zubair. They raised questions as to how he was arrested while Nupur Sharma was not. While that may be a discussion that one could have, for the court to make these observations and then rely on the Zubair judgement after he got bail (and got his FIRs clubbed), could give the impression that the bench, in this case, was almost signalling to the law enforcement that unless they arrest Nupur Sharma or release Zubair, the law would be bent to deny Nupur Sharma the relief that she legally is entitled to. Anybody, whose faith in the judiciary is not as strong, could come to this conclusion and it should be the job of the Justices to ensure that does not happen by providing an adequate explanation for the difference in their judgements and conduct.

The Judiciary certainly can be discretionary, but it definitely cannot be whimsical. In the given case, the judgements seem whimsical at best and personal anger at worst. In either of the cases, Judicial accountability should dictate that the Judges explain themselves to the public and the petitioner so the sanctity of the higher court of the nation is maintained and its majesty is not compromised. With the mind-turning u-turn of the Judges, average citizens are left wondering if the lofty ideals that our judiciary claims to function on have been irreparably damaged and almost like orphaned children they have nobody who would impartially apply the law, ensuring their personal freedom and liberty.

Every arm of the republic is accountable to someone. Elected politicians are accountable to the people and to a large extent, to the judiciary. With the case of Nupur Sharma, one has to wonder to who the Judiciary is accountable if Judges can pass wildly opposing verdicts in a span of a month, without offering an explanation or an apology. Who will bell the cat, is a question that most citizens ask, in muted tones.

The Bengal conundrum: Why was the Bengal govt so desperate to get Nupur Sharma in its jurisdiction

In the court, while the Nupur Sharma case was being heard, the Bengal government represented its case vociferously. The Bengal government claimed that the state had been “most affected” by the comments of Nupur Sharma and therefore, the cases should be transferred to Bengal. They provided no particular evidence to support this claim. However, they considered it their constitutional right to demand that Nupur Sharma’s cases be transferred to Bengal. When that request was rejected, they proceeded to display their desperation further by demanding that a joint SIT be formed, comprising of Bengal and Delhi police, monitored by another SIT headed by the HC or SC.

It is not a secret, at least not a well-kept one despite the unwavering attempts by the media, that law and order is a pipe dream in Bengal. During the post-poll violence, there were several reports of Hindus being brutally massacred and women being raped, while the political class gave its tacit support to the violence by TMC goons, by merely denying that violence took place at all.

This author had personally interviewed a woman from Bengal, who on record said that TMC goons (mostly Muslim men) came to her house and said that they want “Hindu women”. She was then gang-raped with her father, held at gunpoint, watching helplessly. When she spoke up and complained, the very police who were supposed to protect her escorted her to her rapists who then pressurised her to change her political allegiance and join TMC, she said.

The state machinery had completely broken down with some claiming that they constantly called the police when their houses were being burnt down, but the police had simply kept the phone off the hook, so they wouldn’t get calls.

As far as the police are concerned, it works at the direction of and under the instruction of the state government. With the state government using the machinery to jail and harass political opponents, one wonders if their insistence to get the cases transferred to Bengal had anything to do with the impunity that is accorded to the Mamata Banerjee government. The media, through the post-poll violence, was shamelessly silent and the government was given a free pass, with BJP workers, essentially Hindus, being hounded and murdered on a daily basis.

The liberals have been signalling for a long time that those states where there is a non-BJP government need to file FIRs mindlessly and start arresting those who are a threat to their ecosystem. One tweet that comes to mind was by Prashant Bhushan. He basically called for extra-judicial FIRs to be filed in opposition-ruled states against OpIndia so editors can be arrested, willy-nilly. In Maharashtra, Arnab Goswami was arrested in a closed case simply because he asked harsh questions to Uddhav Thackeray. Other average citizens like Sameet Thakkar, Ketaki Chitale etc were incarcerated and mistreated simply because they spoke up against the government and in favour of the BJP in some cases.

Opposition-ruled states have shown immense propensity to bend the law in order to incarcerate and torture those they don’t agree with. They know for a fact that the corporate media would never ask them the questions they deserve to be asked. Sample this – In 2021, Rajdeep Sardesai was asked if he questioned Mamata over the post-poll violence in her state. He said, “I was not there to take her interview. I went there casually on ‘chai pe charcha’. Had I asked her about the post-poll violence I would not have gotten to eat Rusgullas”. Recently, Mamata Banerjee shameless defended her “Jihad against BJP” comment and also claimed that no post-poll violence ever took place in Bengal. Through it all, Rajdeep Sardesai sat there, with no counter, smiling from ear to ear.

Realistically, had Nupur Sharma’s case been transferred to West Bengal, do we truly believe that it would not have been used as an opportunity by the Mamata Banerjee government to ensure she is jailed? Do we truly believe that Nupur would have been safe in a state where Jihadis ran amuck and the Chief Minister declared “Jihad” against the party she belongs to? Do we think the government would ensure a free and fair probe when it could not even save the Hindus of its own state, given that Muslim appeasement is almost Mamata’s declared stand?

Going forward, the strategy of the Islamist-Left cabal is clear – they would file cases in friendly states and insist that those they don’t agree with are hounded, incarcerated and intimidated to keep quiet. The Bengal government tried and failed with Nupur Sharma, but she will not be the last and this will certainly not stop.