A Supreme Court bench led by Justice Uday Umesh Lalit is slated to hear on Monday, 22 August, activist-journalist Teesta Setalvad’s plea challenging the Gujarat High Court's refusal to grant her interim bail in a case registered by Gujarat Anti-Terrorism Squad (ATS), alleging falsification of records by her in a bid to implicate high state functionaries in the Gujarat riots conspiracy case.
The case, incidentally, was registered in the immediate aftermath of the Supreme Court's dismissal of the plea filed by slain former Congress MP Ehsan Jafri's wife Zakia Jafri, which had challenged the Special Investigation Team (SIT) probe in the Gujarat riots case.
Not only did the top court, in their 24 June order, uphold SIT’s clean chit to Prime Minister (and former Gujarat CM) Narendra Modi and several others, but they also cast aspersions about there being a “coalesced effort” and “devious stratagem adopted to keep the pot boiling” for “ulterior design.”
The next morning Home Minister Amit Shah alleged in an interview that Setalvad's NGO had spread "baseless" information regarding the 2002 Gujarat riots, and within hours she was detained and subsequently arrested.
The FIR
Setalvad has been booked under the following sections of the Indian Penal Code (IPC):
468 IPC: Forgery for purpose of cheating
471 IPC: Using as genuine a forged document or electronic record
194 IPC: Giving or fabricating false evidence with intent to procure conviction of capital offence
211 IPC: False charge of offence made with intent to injure
218 IPC: Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture
120 B IPC: Punishment of criminal conspiracy
The FIR also names former IPS officer Sanjiv Rajendra Bhatt and former Gujarat DGP RB Shreekumar as accused in the case.
Further, it quotes heavily, amid a barrage of seeming conjectures, from the Supreme Court judgment in the Zakia Jafri case.
Setalvad’s Petition in SC
Setalvad’s petition, according to media reports, says:
“The petitioner strongly believes that she has been targeted by the state as she raised critical issues before this Court challenging the administration.”
It was mentioned before a bench led by Chief Justice of India (CJI) NV Ramana by her Advocate Aparna Bhat on Tuesday for urgent listing.
The CJI had thereby agreed to list the matter before Justice Lalit’s bench on 22 August.
Since Setalvad’s arrest in June, her application for bail has been rejected by an Ahmedabad court (on 30 July), while the Gujarat High Court (3 August) had merely issued notice to the Special Investigation Team (SIT) seeking its response to her plea and listed the matter for further hearing on 19 September.
When Sessions Court Rejected Her Plea
Rejecting the bail pleas of both Setalvad and co-accused former ADGP RB Sreekumar (who was a witness in Jafri’s case challenging the SIT probe), Additional Principal Judge Dilipkumar Dhirajlal Thakkar said:
“I have carefully perused the papers, it apparently appears that this case is being investigated by the SIT for the accusations of applicants-accused and others for larger conspiracy of post Godhra Train Incident by the then C.M. and others was considered to be not established. (Sic)”
Further, the court claimed that “…if the applicants-accused are enlarged on bail then it would impliedly encourage to the wrong doers that in-spite of doing such type of accusations against the then CM (present PM Modi) and others, the Court has lightly enlarged the accused on bail.”
It still remains unclear, though, why it matters that the accusations were against a democratically elected leader so much that the accuser cannot even be permitted the relief of bail. The court can decide what it wants on the role played in a situation by an elected representative of a government, but under which law, is a citizen of India (a democracy!) forbidden from even questioning the said role in a court of law?
“Therefore, looking to the above facts and circumstance, even though the applicant is being a lady and another is retired IPS officer and aged person, they are not required to be enlarged on bail,” the court added.
Supreme Court’s Remarks in the Zakia Jafri Case
Dismissing Jafri’s plea on 24 June, the Supreme Court bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, had also also expressed "appreciation for the indefatigable work done by the team of SIT officials" and held that "failure of the State administration to maintain law and order cannot be linked to a suspicion of criminal conspiracy at the highest level."
Most controversially, however, they went on to suggest:
"At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation."
Further, the Court added:
"Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design."
"As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law," they said.
This, despite the fact that:
Audacity is not a punishable offence, at least not in a constitutional democracy.
If a matter spills over 16 years, after being admitted by relevant courts of law on their own discretion, little blame can befall the petitioners. Legal process often pans decades and various stages of appeal, before arriving at a final conclusion. A question of law cannot be permanently settled overnight, and right to appeal is a statutory right.
Further, even if there was an ulterior design (or a coalesced effort, as suggested by the court in a remark preceding the one quoted above), the top court did not make any specific findings of fact. In the absence of any specific findings of fact and an actual order on that basis, the court's judgment in the Zakia Jafri case cannot be used as a basis for action against activist Teesta Setalvad, former ADGP RB Sreekumar and ex IPS officer Sanjiv Bhatt.
Criticism of Comments in the Zakia Jafri Judgment
The top court’s remarks in the Zakia Jafri case did come under criticism by legal experts.
In an interview with Live Law, Senior Advocate Dushyant Dave said:
“I think the Supreme Court has sent a terribly wrong message. I think what the Supreme Court has done effectively is to shoot the messenger, which is not a good news for democracy and rule of law”.
Speaking to The Quint, former Supreme Court judge Madan Lokur had said:
“I think the Supreme Court has to be sober or has to exercise sobriety while referring to conduct of persons.”
Further Justice Lokur opined that an order such as the Zakia Jafri order is certain to have chilling effect.
This is also perhaps why in the Mohammad Naim case, the Supreme Court had expunged certain remarks against the entire police force made by a High Court judge in a case pertaining to only one police officer. The top court had, in that judgment, noted that independence of judges and magistrates must be maintained, and also added:
“At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made.”
The Supreme Court further noted: “It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”
This above observation might apply in case of the session's court order dismissing Setalvad's plea as well, for parts of that order seem to be a reiteration of some of the most far-reaching conjectures that emanated from the Zakia Jafri judgment.
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