“Neither can live while other survives,” Professor Sybill Trelawney had predicted for Harry Potter and Lord Voldemort, setting in motion the chain of events (Voldy hunts Harry so he can live forever, Harry hunts Voldy so he can save the world) in JK Rowling’s famous book-series.
Trelawney could not however have accurately said the same for law and liberty.
The Supreme Court, in the very first week of Chief Justice of India (CJI) UU Lalit's tenure, reminded us that law and liberty, in fact, go hand in hand, and that liberty does not have to be sacrificed for the sake of law, or vice versa.
With it's order granting interim bail to activist Teesta Setalvad, during the pendency of her bail plea in the High Court, despite the respondent state's vocal resistance to the matter – "if a litigant has two remedies and he voluntarily elects one, he is stopped from taking second," the Solicitor General argued – a bench led by CJI Lalit has reminded us of an important principle of criminal jurisprudence:
"Bail is the rule, jail the exception."
Hailing the judgment as one that "strengthens our laws, civil liberties, criminal jurisprudence, and is a correct application of principles for granting bail," former Allahabad High Court Chief Justice Govind Mathur said that it is something that the Gujarat High Court themselves should have done – "considered the bail plea and decided on this at the earliest, instead of waiting for six weeks."
So, Here's What Had Transpired –
Shortly after the apex court had dismissed a plea filed by Zakia Jafri challenging the SIT clean chit given to high state functionaries, including Prime Minister (PM) Narendra Modi in connection with the Gujarat Riots, Jafri’s co-petitioner Teesta Setalvad was arrested under forgery and conspiracy related sections of the Indian Penal Code (IPC).
As noted now by the apex court:
“The First Information Report made reference to various proceedings including the judgment and order dated 24.06.2022 passed by this court in Zakia Ahsan Jafri v State of Gujarat & Anr.”
Setalvad, who had been incarcerated since 25 June, moved a Sessions Court in Gujarat with her bail plea, but her petition was rejected. Following this she applied for bail at the Gujarat High Court, but on 3 August, the High Court issued notice and made it returnable only on 19 September.
In the interim, Setalvad, who had been incarcerated for approximately two months now moved the top court for relief.
The top court, during the course of the hearings, asked:
"In a matter like this, High Court issues notice on 3 August and makes it returnable on 19 September?...Is this the standard practice in Gujarat High Court? Give us a case where a lady has been involved in a case like this and High Court has made it returnable by six weeks?"
But the Solicitor General, appearing for the State, insisted that the High Court had acted uniformly.
Still, the Supreme Court on Friday held that in their view, Setalvad was entitled to release on interim bail, even as they noted the Solicitor General’s submission that the matter is still pending consideration before the High Court and said:
“We are therefore not considering whether appellant be released on bail or not. That issue is to be considered by the High Court. We are considering only from the standpoint whether the custody of the appellant must be insisted upon during the consideration of matter.”
The also stated that the entire matter shall be considered on merits by the High Court "independently and uninfluenced" by any observations made by the top court while granting interim bail to Setalvad.
Noting that this “would mean that these observations are independent and that the Supreme Court does not want to influence or decide the matter pending before High Court,” Advocate Adeel Ahmed still maintained:
“The recent grant of interim bail to Teesta Setalavad by the Apex Court is a reiteration of the top court's recent and judicially sound stand that bail should be the norm and not jail. More particularly in the absence of cogent evidence, the limited powers of custodial interrogation should not be stretched to deprive the liberty of an individual.”
During the course of the hearing, CJI Lalit had inquired from the State’s counsel about the number of days Setalvad was interrogated for and if anything at all had emerged from the interrogation. The SG had said in response: “Seven days. But she has refused to answer.”
The court thereby noted in their order that Setalvad had been remanded to police custody for seven days, during the course of which she was interrogated everyday by the concerned investigating agency. Then she was remanded to judicial custody.
Subsequently, the court observed that “the essential ingredients of the investigation including the custodial interrogation having been completed,” the relief of interim bail till the matter was considered by the High Court was certainly made out.
Why This Order is Important
The apex court’s stand in this case is pertinent as it comes amid the respondent state's heavy resistance to the idea of Setalvad getting relief from the top court while her matter was pending before the High Court.
“My first contention is that all this must go before the High Court, like any other ordinary accused would…I feel very strongly about it so pardon me for saying this…” the Solicitor General, appearing for the Gujarat government, had told the court, insisting that Setalvad should not be permitted to approach the Supreme Court under Article 136 of the Constitution.
The fact that the Supreme Court decided to still go ahead and grant her interim bail, without withdrawing from the High Court their agency to consider the matter on merits, shows a fine balance between law and liberty, that one can exist while the other survives, that the apex court respects the High Court’s authority and the state’s submission regarding the same, while also paying considerable heed to an individual’s right to liberty.
Further, even though the apex court maintained in their order that their observations are their own and do not have an influence on the High Court’s decision, the top court has set a strong precedent, in a general sense, by looking into the facts of Setalvad’s case in a detailed, intricate manner, and even vocalising “four or five features that bothers us” when they found it necessary. These features, as verbally expressed by them on Thursday (a day before the order), include:
Setalvad was under custody for two months and still no chargesheet had been filed
The FIR, registered a day after SC’s dismissal of Zakia Jafri’s case, is mostly a recitation of the SC’s observations in that case and the offences alleged are not serious like murder or bodily injury
There are no offences alleged against Setalvad which bar grant of bail
The Gujarat High Court had granted a long adjournment making the notice returnable by six weeks.
As pointed out by Justice Mathur: “it also very appreciable that the court has taken initiative to know how the bail applications have been considered and decided by the Gujarat High Court and why these long adjournments have been given while deciding these bail applications.”
Further in their order, the apex court stated:
“Having considered the circumstances on record, in our view, the High Court ought to have considered the prayer for release of the appellant on interim bail during the pendency of the matter.”
Permanent Suspension of Liberty for An Accused – Not Permissible
Because a permanent suspension of liberty of an accused or undertrial is not permissible under the Indian law. In fact, in December 2021, in a case involving far more serious charges (than those against Setalvad) the Supreme Court had taken a similar view.
Granting bail to a 74-year-old alleged Maoist leader, who was charged under the UAPA and had been incarcerated and awaiting trial since 2012, the apex court had held:
“Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India.”
Further the court had gone on to say:
“While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long.”
As recently as in July 2022, in Satender Kumar Antil vs Central Bureau of Investigation, a Supreme Court Bench of Justices Sanjay Kishan Kaul and MM Sundresh had asked the government to consider the introduction of a separate enactment to streamline the grant of bails and, pertinently, also reiterated the need for courts to avoid prolonged suspension of liberty for under-trials.
The court had thereby held that unexplained, avoidable and prolonged delay in conducting trial, appeal or revision, would, in fact, be a factor for consideration of bail.
The apex court, while granting bail to alt-news co founder Mohammad Zubair, had observed that the power of arrest must be exercised sparingly.
Thus, evidently bail is a key facet and means of liberty, and the Supreme Court’s order in Teesta Setalvad’s plea granting her at least an interim relief, is a strong reinforcement of the same.
A Wave of Relief for Civil Liberty Advocates
The Supreme Court did add in Setalvad's interim bail order that the relief was granted "in the peculiar facts including the fact that the appellant happens to be a lady", that "this shall not be taken to be a reflection on merits and shall not be used by the other accused," and that the co-accused's submissions shall purely be considered on their own merits.
But the order still comes as a ray of hope for those who who are perturbed by frequent arrests of activists, journalists, writers etc.. This is because it helps to know that the Supreme Court gives importance not only to principles of law, constitutional values but also to the peculiarity of each individual's struggle. That it views them as human first and accused next.
This is especially of consequence, when so many, including Kerala journalist Siddique Kappan, Kashmir journalist Fahad Shah, activists (several of them aged and ailing) who have been accused in the Bhima Koregaon case, continue to languish under varied charges and in an endless wait for trial or bail.
In 2021, the death of 84-year-old Stan Swamy, as an incarcerated undertrial in the Bhima Koregaon case, had sparked outrage and triggered international condemnation. Shortly before his death, Swamy had shared that his body functions had undergone steady regression in jail. He breathed his last in a Mumbai Hospital, on 5 July, a day before his bail hearing.
So when a court rejects the state government's arguments for continued custody and prioritises civil liberties, it comes as a wave of relief for those who believe, defend and depend upon the rights and freedom granted by the Constitution of India. Or as more cogently articulated by Justice Govind Mathur:
“The order in Teesta Setalvad's case is an asset for people who are advocating for civil liberties."