Bullying by the state

AS the Supreme Court Bench comprising Justices Sudhansu Jyoti Mukhopadhyaya and N.V. Ramana heard senior advocate and former Union Minister Kapil Sibal argue the petition filed by Teesta Setalvad and her husband, Javed Anand, seeking anticipatory bail for them on February 13, the Bench was determined that it would treat this case as any other case and not be influenced by the reputation enjoyed by the petitioners as social activists working for the welfare of victims of the communal carnage in Gujarat in 2002.

However, it was fairly clear that howsoever the Bench tried to appear neutral and objective while hearing the matter, the facts of the case, including that they have been social activists seeking justice for the Gujarat carnage victims for over a decade, could not be brushed aside while deciding the merits of their plea for anticipatory bail.

In their petition, Teesta Setalvad and Anand appealed against the denial of anticipatory bail by the Gujarat High Court on February 12. On the same day, Sibal, in view of their imminent arrest by the Gujarat Police, sought and obtained a stay on the High Court’s order from the Chief Justice’s Bench of the Supreme Court until the matter was heard by a regular Bench on the following day. The urgency displayed by the Supreme Court to hear the matter was indeed justified, as the Gujarat Police was already in Mumbai to arrest the couple from their residence. Shockingly, Sibal alleged in the court that the Gujarat Police knew beforehand that Justice P.B. Pardiwala of the Gujarat High Court would deny the anticipatory bail to the couple on that day and therefore were prepared to arrest them in Mumbai several hours before the delivery of the judgment in Ahmedabad. “The judgment was delivered at 4-30 p.m., but the police arrived [at Teesta Setalvad’s residence in Mumbai] at 12 noon,” was how Sibal put it. Hopeful of relief from the Supreme Court, the couple evaded arrest on February 12.

During the arguments on February 13, the Supreme Court Bench was clear that it would not go into the High Court’s judgment as the petitioners had appealed against it. Instead, the court decided to confine itself to the merits of their plea for anticipatory bail independently of the High Court’s judgment. This led Sibal to read from the first information report (FIR), filed on the basis of a complaint received by the Ahmedabad Commissioner of Police, on January 4, 2014. The allegation against Teesta Setalvad and Anand was that by creating sympathy for the victims of the carnage at Gulberg Society, Ahmedabad, in 2002 which claimed 69 lives, they obtained a huge amount by way of donations to the two trusts run by them, namely, Citizens for Justice and Peace (CJP), and the Sabrang Trust, and transferred them to their personal accounts. It was further alleged that huge amounts were paid towards their personal expenditure on credit cards.

As the FIR was registered for criminal breach of trust, cheating, forgery and criminal conspiracy, Sibal brought to the attention of the court that none of the donors to the two trusts had made any such complaint of misappropriation by Teesta Setalvad and Anand. The complainant in this case was not a donor and therefore could not legally allege criminal breach of trust or cheating, he pointed out. He told the Supreme Court that all the relevant documents were with the High Court, yet it found custodial interrogation of Teesta Setalvad and Anand necessary to ascertain the facts. The counsel for the Gujarat government, however, defended the High Court’s judgment, and was prepared to file additional documents to counter the plea for anticipatory bail. As the Supreme Court adjourned the hearing to February 19, observers wondered whether the court was reluctant to take an early decision in the matter in the face of clear legal contentions in favour of Teesta Setalvad and Anand.

The High Court’s judgment shows that the principal argument of Mahesh Jethmalani, the Special Public Prosecutor for the Gujarat government, was that the applicants (Teesta Setalvad and Anand) did not cooperate with the investigation. He also alleged that they did not furnish income tax returns before the Investigating Officer. He argued before the High Court that by merely producing a few documents, the need for custodial interrogation could not be done away with.

Strangely, the judgment shows that after the arguments had concluded on February 6, the counsel for Teesta Setalvad, Mihir Thakore, brought to the attention of the court that all the vouchers and other documents, including income tax returns, had been submitted to the Investigating Officer. The court, however, noted its decision not to take into account the submission of additional documents after the conclusion of arguments.

More significantly, the High Court was not impressed with the submissions of Thakore that the applicants had levelled serious allegations of mala fides against the State government, in the context of their legal campaign that the State government was complicit in the 2002 carnage of Muslims. Still, the High Court observed thus: “The mala fides must be specifically alleged and required to be proved by the applicants.”

In later paragraphs, the High Court contradicted itself: “Mala fides is something which definitely should be considered, but if there is (are) other materials on record to prima facie indicate the complicity and involvement of the accused, then only on the ground of mala fides anticipatory bail should not be granted.” The High Court could not, however, convincingly explain how the State found three other accused named in the same FIR (other than Teesta Setalvad and Anand) eligible for anticipatory bail.

The well-known senior advocate of the Supreme Court Prashant Bhushan described the High Court judgment as perverse. He said: “It just shows to what extent the judiciary gets easily influenced by the executive; that the judge gave an oral consent to have them arrested even before he delivered the order only shows his prejudice. In any case, the person who filed this complaint has not been cheated, or his trust not breached by her; therefore, third parties normally cannot make such complaints.”

V. Venkatesan