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Hope SC's Relief for Teesta Sends Message to Trial and High Courts: Sanjay Hegde

The SC's Saturday order in the Teesta Setalvad case shows that excess of any kind is not judicial statesmanship.

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Late Saturday night, hours after the Gujarat High Court rejected activist Teesta Setalvad’s bail plea and asked her to surrender immediately, a three-judge bench of the Supreme Court granted her interim protection, staying the HC order for seven days.

But the news to pay attention to is not that Teesta Setalvad got interim bail from the three-judge bench of the Supreme Court. The news is that she was driven to seek such bail on an emergency basis.

Teesta’s troubles started when the SC dismissed Zakia Jafri’s plea for criminal action against the then Chief Minister of Gujarat for the 2002 riots. In the June 2022 judgment, the SC judges spoke of putting “in the dock” those individuals who pursued the cause of fighting for the victims of the 2002 riots.

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“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... all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law."
Supreme Court in its June 2022 verdict in the Zakia Jafri Case

Following this, over 300 lawyers, including me, Indira Jaising, Anand Grover, and others had written to the Chief Justice of India (CJI) urging the court to suo moto clarify that it didn’t intend to have any adverse consequences by way of such a statement.

“We refuse to believe that our Supreme Court really intended, to sanction in advance, the course of retribution that the current government has chosen to pursue.”
Letter written by over 300 lawyers in June 2022 to CJI

Of course, the judges were not to be swayed by mere letters.

The 3-Judge Bench Did What Gujarat HC Should Have Done

The Gujarat government, having been given such a clear lead by the SC, turned up in Mumbai the very next day after the judgment and arrested Teesta. She continued to be in custody till the SC in September 2022 passed an order granting her interim bail till the bail petition was heard by the trial court.

The trial court subsequently denied her bail, and she then appealed to the Gujarat HC. The HC, after hearing the bail petition over several days, pronounced its order on the morning of 1 July 2023 – a working Saturday for the Gujarat HC.

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Denial of bail by a court over a weekend ensures that the accused remains in jail till at least the next Monday when an appellate court can consider the case. However, in these days of electronic filing, Teesta’s lawyers must be complimented on immediately filing an appeal to the SC, even without securing a copy of the HC order which denied bail.

The matter was first heard by a two-judge bench. And while the presiding judge seemed inclined to grant bail till the copy of the order was available, so that the matter could be fully heard, the other judge did not appear inclined to grant bail on an emergency basis.

It required the CJI to constitute a three-judge bench, and the three judges had to urgently rush from a social function they were attending.

The three judges brought to the Solicitor General the same question that the presiding judge among the two judges put forth – when she had already been granted interim bail by the SC earlier, what was the tearing hurry to deny her interim bail that she needed to appeal to the SC?

Some of the observations by the three-judge bench were particularly strong and appear to express some discomfort with what the SC had done earlier in its earlier judgment that placed a target on Teesta. The bench has, for the moment, done what the single judge of the Gujarat HC ought to have done even after he denied a regular bail to Teesta.

The single judge of the HC could very well have given her adequate time to appeal. He did not do so, thus requiring the attention of five judges of the SC, in addition to the CJI, whose orders would have been sought time and again by the registry of the SC.

Order Not a Victory for Teesta, She May Be in This for the Long Haul

This episode should tell the nation how vulnerable its liberties are if they are not protected by a fair-minded, independent, and fearless judiciary.

The order does show that excess of any kind is not judicial statesmanship. The current judges of the SC now have a chance to possibly mitigate some of the excesses of the not-too-distant past. It is also hoped that this order sends a message to judges in the trial courts and the high courts that the liberty of citizens is to be valued and protected at all times from an overzealous executive or despotism of any kind.

The Gujarat HC, after listening to arguments, may very well have been influenced by the original judgment of the SC that began these proceedings, which may have caused it to feel inhibited.

But even if the HC did feel inhibited in granting regular bail, it could have certainly seen to it that in the interest of basic fairness, Teesta should have been allowed adequate time to present her appeal to the SC.

The fact that the judgment was pronounced on a Saturday and even an application for a stay of the judgment was immediately denied almost implied that the Gujarat HC thought it expedient that Teesta be imprisoned straight away.

The fact that interim bail has been granted for seven days after which the matter will be placed with the final copy of the judgment of the Gujarat HC should not be taken as a victory for Teesta or as a defeat for the Gujarat government.

All that has happened now is that the judges of the SC have said let us see the judgment and, in the meantime, do not arrest her. It does not mean that Teesta is out of the woods. And it does appear that she has a long innings ahead in courts. The only question is whether it will be fought while she is in custody or while she is out on bail.

Satyameva Jayate in the era of post-truth, might find imprisonment or bail, equally illusory.

(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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