Bail to Teesta Setalvad after two months and a half —a few questions


The well-known social and human right activist Teesta Setalvad, played a notable role in ensuring that several victims of the notorious anti-minority pogrom in Gujarat in 2002, orchestrated by frenzied armed hoodlums of the arch Hindu communal RSS-BJP-Sangh Parivar, got justice in courts. The present BJP Prime Minister, Narendra Modi and Union BJP Home Minister Amit Shah were Chief Minister and Home Minister, respectively, of Gujarat when this carnage took place.
It was alleged by many including some top-ranking police officers that this massacre could not have occurred without tacit approval of the state government. But all such allegations including Court petitions were neatly suppressed, and a Special Investigation Team (SIT) constituted by the government itself expectedly gave a clean chit to the then Gujarat Chief Minister Narendra Modi and 63 others in 2012. A Magisterial Court in Gujarat upheld the report. Visibly upset with the SIT report and the verdict of the Magisterial Court, Zakia Jafri, wife of slain Congress leader and MP Ehsan Jafri, filed a petition in Supreme Court challenging the SIT’s refusal to file a case against Narendra Modi for his alleged role in the anti-Muslim violence. Ehsan Jafri was among the 68 people killed in Ahmedabad’s Gulberg Society during violence on 28 February 2002. Now, in the SC a Division Bench also dismissed the plea of Zakira saying that it was devoid of merit. She and two former Gujarat police officers—R.B. Sreekumar and Sanjiv Bhatt—have instead been accused of misleading the SIT to get innocent persons convicted. The ruling of the Supreme Court was pronounced on 24 June 2022.
On the next day, for reasons better known to the authorities, a team of Gujarat Anti-Terrorist Squad (ATS) went to the residence of Teesta in Mumbai to take her into custody. The Gujarat ATS was not carrying any warrant for arrest. Teesta protested and wanted to lodge a complaint with the local police station. With great difficulties she made her way into the police station where she informed the media aloud that they were not letting her register her complaint. Finally, under pressure, the Mumbai police took down the names of all the ATS officers who had come there. Meanwhile, Teesta’s phones were seized without any panchnama (A record of witness testimony, usually prepared by the police, during the investigation of a crime or after a death) at her home. Then she was taken to Ahmedabad Crime Branch Office where she made a verbal complaint to the incumbent ACP saying her detention was illegal. She also described how an officer had pushed her, abused her and seized her phone. At every juncture, she reminded the police, the crime branch officials and the prosecution officials that this is a political case. Then she was produced before a magistrate who ordered her five days of remand. From then onwards, she was in custody for two months and a half on the unproven charge of an alleged conspiracy to forge documents and present false evidence in court to implicate political leaders and send innocent persons to jail by misleading the investigation into the 2002 Gujarat carnage case.
Finally, a Bench of present CJI U U Lalit and Justices S. Ravindra Bhat and Sudhanshu Dhulia said, ‘‘We have considered the matter only from the standpoint of interim bail and we shall not be taken to have expressed anything on the merits of the submission advanced on behalf of the appellant. The entire matter on merits shall be considered by the High Court independently and uninfluenced by any observations made by this Court.’’ While granting interim bail to her, the Supreme Court Bench had dealt a firm rebuff to the Gujarat government, which stoutly opposed her release after showing great alacrity in arresting her for pursuing allegations that high functionaries were involved in the Gujarat pogrom of 2002. The Bench raised five points to the Gujarat government:

  1. The petitioner (Setalvad) has been in jail for two months without a chargesheet being filed in the case.
  2. The first information report (FIR) was filed the day after the Supreme Court judgment dismissing Zakia Jafri’s plea questioning the clean chit given to Narendra Modi in the Gujarat riots case. The FIR does not add anything other than the top court’s observations.
  3. The Gujarat High Court made notice returnable on Setalvad’s bail plea in six weeks; a long adjournment period.
  4. The offences Setalvad was charged with do not pertain to serious matters such as murder or bodily injury.
  5. None of the offences Setalvad has been charged with bar the grant of bail.
    The Supreme Court Bench also pulled up the Gujarat police for its failure to file a chargesheet or elicit anything from the custodial interrogation of the activist. ‘‘There is no offence in this case which comes with a rider that bail cannot be granted, like UAPA, POTA. These are normal IPC offences…These are not offences of bodily offences; these are offences of documents filed in court. In these matters, the normal idea is, after the initial period of police custody, there is nothing which stop the investigators from conducting investigation without custody…And as per Section 437 mandate, a lady is entitled to favourable treatment,’’ the Court further observed.
    Obviously, certain basic questions arise about the punitive process and justice delivery system. Is it that a kind of state terrorism is operational under the guise of maintaining rule of law? Is the investigation procedure under the influence of the Executive i.e., the bureaucracy-ministers gradually reduced to a farce or a showy business? Is the Executive increasingly arrogating to itself the absolute power so much so as to subvert judicial autonomy? Are the police completely turned into a puppet body of the party in power? Can the police act in any manner which is precluded in law? Is any dissent or disagreement or expression of a contrary view being regarded as equivalent to treason? Are democratic rights of the common citizens pilloried in ‘democratic’ India whereas unilateral, arbitrary and wanton actions on the part of the power that be are sacrosanct and hence above board? Are the ministers, legislators, leaders or even ordinary workers of the ruling dispensation licensed to do anything with impunity? Is not a government accountable for any lethal attack on any group of citizens or community by miscreants? Can criminals openly go berserk and mercilessly slaughter innocent citizens for days on end unless the police-administration acquiesce in such bestiality? Is the judiciary yielding place to the omnipotent Executive to decide both legitimacy and legality of any step or act?
    Democratic-minded people need to seriously ponder over all these questions, and what it entails for them to do.
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