Last Friday, a Bench of the Supreme Court of India led by the Chief Justice of India, Justice U.U. Lalit, granted interim bail to human rights activist Teesta Setalvad who was arrested in June this year. She has now walked out of jail. The order is, without doubt, a great relief to Ms. Setalvad personally, and to the country’s liberty jurisprudence at large. The Court, in the instant case, has directly confronted a politically vindicative executive and performed its role. Yet, the order calls for critical discourse.
Rather than the solution of interim bail that the Court has rightly provided to the activist, it is the set of questions that it has posed which requires the attention of all concerned, especially those at the helm of affairs. During the hearing, the judges underlined four “features” of the case that “bothered” the Court. They are: omission in filing the charge sheet even after two months of Ms. Setalvad’s arrest; registration of the First Information Report (FIR) on the very next day of the Supreme Court’s judgment that dismissed Zakia Jafri’s plea against exoneration of Narendra Modi and others in the 2002 Gujarat riots, with strictures against Ms. Setalvad and others; the long adjournment of the bail plea by the High Court (from August 3 to a date after September 19); lack of allegations regarding commission of any offence serious enough to deny bail.
Editorial | Relief, rebuff: On Teesta Setalvad bail plea
These issues, which the Court posed, would travel well beyond Ms. Setalvad’s case. The Court’s pointed questions have clearly exposed the malice in the State’s action. More importantly, the same questions remain equally relevant and compelling in hundreds of cases across the country, with an important supplement — that, in many of them, draconian provisions have also been recklessly invoked, to victimise the dissidents.
The sad part of the top court’s order, however, is that the rigour of these questions and the enthusiasm to get clear judicial answers are conspicuously lacking in the final order. The questions on the features of the case were asked by the Court openly on Thursday, September 1, 2022, and after a day’s adjournment, the matter was heard further and the order pronounced on Friday.
Friday’s order, after noting the long custody of the appellant lady and the opportunity availed by the police officers for custodial interrogation, said that the petitioner had made out a case for “the relief of interim bail, till the matter was considered by the High Court”. The Court said: “We are therefore not considering whether the appellant be released on regular bail or not. That issue will be gone into by the High Court.” The Court also made an unwarranted clarification that the present order “shall not be taken to be a reflection on merits and shall not be used by the other accused”.
When the fundamental questions which the Court posed on the previous day remained relevant, the Supreme Court, as the guardian of the Constitution, should have and could have done better by answering them and granted regular bail to Ms. Setalvad, by which a useful precedent would have been set for the other accused (who are almost identically situated) in the case as well. Viewed in this way, the order is disappointing.
The questions by the Court are directed against the Gujarat High Court too. Adjournment of regular bail applications for an indefinite period occurs in many High Courts. This is an issue that should have been taken up seriously by the top court. In the very same context, the Court ought to have also held that when such an indefinite delay happens, that by itself is a reason for an appeal before the Supreme Court under Article 136 of the Constitution.
The Solicitor General had raised a contention on the maintainability of Ms. Setalvad’s appeal based on the doctrine of elections, suggesting thereby that the petitioner having moved the High Court, should have waited for the High Court’s final decision. This could have been easily rejected by the top court on the ground of a gross violation of fundamental rights. In a scenario where the High Courts take several weeks or even months together in deciding a bail plea, the Supreme Court should have deprecated such practice. Ms. Setalvad’s case was a classic one where the delay in taking the decision itself amounted to an adverse decision warranting intervention by the top court. It is curious to note that the Centre relied on the principles of ‘rule of law’ and ‘equality before the law’ at the Supreme Court, to detain the activist. This terrible irony required a judicial admonition, which too, unfortunately, did not occur.
On June 24, a Bench led by Justice A.M. Khanwilkar, quite unfairly and without materials, blamed Ms. Setalvad and others for showing “the audacity to question the integrity of every functionary” associated with the investigation. In the context of the long litigation for rendering justice to the Gujarat riot victims, Ms. Setalvad and others were accused of “keeping the pot boiling”. Without any convincing reason, the Bench also said that “all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law”. This deplorable approach, which was palpably erroneous and unjust, was the basis for the high-handed action against Ms. Setalvad and others. In view of this, the trial court as well as the High Court might have turned reluctant to grant bail to the accused. This is all the more the reason why the Supreme Court, as an institution, should have invoked its introspective jurisdiction to grant regular bail to Ms. Setalvad, which unfortunately did not happen.
A delay that is serious
A long delay in deciding the bail plea is a serious issue. The country’s judiciary has been infected with this pathological condition for quite a long time, because of which hundreds of political prisoners languish in jails even now. The predicament of Father Stan Swamy who died while in judicial custody and many others, from Siddique Kappan to Umar Khalid to Gautam Navlakha, who are repeatedly denied bail and stay in prison, has put the judiciary also under trial. Thus, Ms. Setalvad’s case was an opportunity for the Court to evaluate the state of freedom in the country. It offered a litmus test. It was an occasion for a formidable judicial reprimand to the political executive, and to the judiciary itself, that has failed the people during tough times. It is, clearly, an opportunity missed.
Stronger intervention missed
In the celebrated judgment in Gudikanti Narasimhulu (1977), Justice V.R. Krishna Iyer wrote: “The issue of ‘Bail or Jail’ -at the pretrial or post-conviction stage-although largely hinging on judicial discretion, is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.” These prophetic words had resonance in Joginder Kumar vs State of U.P. (1994), where the Court ordered procedural imperatives for arrest. In Sanjay Chandra vs CBI (2011), the Court put the issue in perspective: “The object of bail is neither punitive nor preventative”. It is only to “secure the appearance of the accused”. The judgment in Arnesh Kumar vs State Of Bihar & Anr. (2014), relying on the provisions of the Criminal Procedure Code and the Law Commission reports, warned against arbitrary arrests and detention. Even recently, in Satender Kumar Antil vs Central Bureau Of Investigation (2022),while urging for a Bail Act in India, the Supreme Court said that the ideas of democracy and the Police state are conceptually opposite to each other.
It is the Court’s own judicial philosophy on bail that makes the order in Ms. Setalvad’s case inadequate. The case deserved a better and stronger intervention. True, justice was rendered. But only incompletely.
Kaleeswaram Raj is a lawyer at the Supreme Court of India