Justice, provided, but only incomplete

Last Friday, a division bench of the Supreme Court of India led by Chief Justice of India, Justice UU Lalit granted interim bail to human rights activist Teesta Setalvad, who was arrested in June this year. She is out of jail now. Undoubtedly, this order is a great relief to Ms Setalvad personally and to the independence jurisprudence of the country. The Court has directly faced a politically vindictive executive in this case and played its part. Nevertheless, the order calls for critical discourse.

need answer

Rather than the resolution of the interim bail, which the Court has rightly granted to the activist, it is a set of questions that it has asked to be addressed by all concerned, especially on the top of the cases. During the hearing, the judges outlined four “features” of the case that “troubled” the Court. They are: lapse in filing chargesheet even two months after Ms Setalvad’s arrest; The registration of the First Information Report (FIR) comes the day after the Supreme Court’s decision, which dismissed Zakia Jafri’s plea against the acquittal of Narendra Modi and others in the 2002 Gujarat riots, against Ms Setalvad and others ; Prolonged adjournment of bail plea by the High Court (from 3 August to the date after 19 September); Lack of charges in respect of the commission of any offense serious enough to deny bail.

These issues, which the Court brought up, go far beyond Ms Setalvad’s case. The court’s sharp questions have clearly exposed the malice in the state’s action. More importantly, the same question is equally relevant and compelling in hundreds of cases across the country, with a significant complement – ​​that, in many of them, to victimize dissidents, even stringent provisions have been negligently have been applied.

However, the sad aspect of the apex court’s order is that the seriousness of these questions and the fervor to seek clear judicial answers is clearly lacking in the final order. The Court on Thursday, September 1, 2022, openly asked questions on the merits of the case and after a day’s adjournment, the matter was heard further and the order was pronounced on Friday.

Friday’s order, taking into account the opportunity availed by the police officers for long custody and custodial interrogation of the appellant woman, states that the petitioner had “made a case for the relief of interim bail, until was not considered by the High Court.” The court said: “Therefore, we are not considering whether to release the appellant on regular bail or not. That issue will be considered by the High Court.” The court also gave an unreasonable explanation that the present order “will not be taken as a reflection on the merits and will not be used by other accused”.

lost opportunity

While the fundamental questions raised by the Court the previous day remained relevant, the Supreme Court, as the custodian of the Constitution, should have done better by answering them and Ms Setalvad could have been granted regular bail, setting a useful precedent. It would also have been prescribed for the other accused in the case (who are located almost identically). Viewed this way, the order is disappointing.

The court’s questions are also against the Gujarat High Court. Many high courts have an indefinite adjournment of regular bail applications. This is an issue which the apex court should have taken seriously. In the same context, the Court should have also observed that when there is such an indefinite delay, it is itself a reason to appeal before the Supreme Court under Article 136 of the Constitution.

The Solicitor General had raised a dispute on the maintainability of Ms Setalvad’s appeal on the principle of election, suggesting that the petitioner should have waited for the final decision of the High Court after moving the High Court. It could have easily been dismissed by the apex court on the ground of gross violation of fundamental rights. In a scenario where high courts take weeks or even months at once to decide on bail pleas, the Supreme Court should have boycotted such practice. Ms Setalvad’s case was a classic case where the delay in decision making was itself an adverse decision requiring intervention by the apex court. It is worth noting that the Center relied on the principles of ‘rule of law’ and ‘equality before law’ in the Supreme Court to detain the activist. This terrible irony required judicial advice, which unfortunately did not happen.

On June 24, a bench headed by Justice AM Khanwilkar, quite erroneously and without material, convicted Ms Setalvad and others for showing “the audacity to question the integrity of every functionary” involved in the investigation. Ms Setalvad and others were accused of “boiling the pot”, in the context of the lengthy litigation to bring justice to the Gujarat riot victims. Without any concrete reason, the bench also observed that “all those involved in such abuse of process need to be in the dock and proceed as per law”. This reprehensible approach, which was clearly wrong and unjust, was the basis for high level action against Ms Setalvad and others. In view of this, the trial court and the high court probably refused to grant bail to the accused. That is why the Supreme Court, as an institution, should have exercised its introspective jurisdiction to grant regular bail to Ms Setalvad, which unfortunately did not happen.

a delay that is serious

The long delay in deciding the bail application is a serious issue. The country’s judiciary has been suffering from this diseased condition for a long time, due to which hundreds of political prisoners are still lodged in jails. From Siddiqui Kappan to Umar Khalid to Gautam Navlakha, who was repeatedly denied bail and imprisoned, died while in judicial custody and many others, the plight of Father Stan Swamy shocked the judiciary as well. has been put on trial. Thus, Ms Setalvad’s case was an opportunity for the Court to assess the state of independence in the country. It offered a litmus test. It was an occasion for a tremendous judicial rebuke to the political executive and the judiciary itself, which has failed the people during difficult times. This is clearly a missed opportunity.

Strong interference missed

in the observed decision Gudikanti Narasimhulu (1977), Justice V.R. Krishna Iyer wrote: “The issue of ‘bail or jail’—at a pre-trial or post-conviction stage—though largely dependent on judicial discretion, is one of liberty, justice, public safety and the burden of the public. Treasury, all of which emphasize that the developed jurisprudence of bail is an integral part of the socially sensitive judicial process.” There was resonance in these prophetic words Joginder Kumar vs State of UP (1994), where the Court ordered procedural imperative for arrest. In Sanjay Chandra v. CBI (2011), the Court put this issue in perspective: “The purpose of bail is neither punitive nor deterrent”. This is only to “ensure the presence of the accused”. decide in Arnesh Kumar Vs State of Bihar & Ors. (2014), relied on the provisions of the Code of Criminal Procedure and the Law Commission report, warning against arbitrary arrest and detention. Even recently, Satendra Kumar Antil Vs Central Bureau of Investigation (2022), while urging a Bail Act in India, the Supreme Court held that the ideas of democracy and 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 insufficient. The matter deserved a better and stronger intervention. True, justice was served. But only incomplete.

Kaleeswaram Raj is a lawyer in the Supreme Court of India.