Teesta Setalvad had approached the Supreme Court for a stay on the Order of the Gujarat High Court rejecting her bail application today and asking her to surrender immediately. A two-judge Bench of the Supreme Court could not agree on granting interim protection and directed that the matter should be heard by a larger Bench. The Chief Justice of India Dr D.Y. Chandrachud constituted a three-judge Bench post haste, and the three-judge Bench stayed the Order of the Gujarat High Court in a late-night hearing, giving Setalvad interim relief and seven days to apply for regular bail.
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IN a rousing finale to a busy day for judicial protection for individual liberty in India, a three-judge Bench of the Supreme Court led by Justice B.R. Gavai and comprising Justices A.S. Bopanna and Dipankar Datta stayed the Order of the Gujarat High Court rejecting the bail application of journalist and civil rights activist Teesta Setalvad for a week.
Without going into the merits of the matter, the court opined that the high court was unjustified in not even granting a week’s time to Setalvad to appeal against the arrest Order.
The special Bench had been constituted by Chief Justice of India Dr D.Y. Chandrachud on the observation of a two-judge Bench comprising Justices Abhay S. Oka and Prashant Kumar Mishra who could not decide earlier in the evening on whether to grant Setalvad interim bail.
Justice Datta pointed out that even though a three-judge Bench comprising Justices A.M. Khanwilkar, Dinesh Maheswari and C.T. Ravikumar had used “quite harsh words” against Setalvad in its judgment on June 24, 2022, the same court (through a different three-judge Bench headed by the then Chief Justice of India Uday Umesh Lalit, and comprising Justices S. Ravindra Bhat and Sudhanshu Dhulia) had granted her interim protection on September 2, 2022, which showed that the court did not want to deprive her of personal liberty.
Justice Gavai opined that the high court was unjustified in not granting even a week’s time to Setalvad to appeal against the arrest Order.
The court asked more than once: Should someone whose liberty is at stake not be granted even a day to seek judicial protection for it?
Solicitor General of India Tushar Mehta, appearing for the Union government, told the court that the case before it is simple— riots were taking place; people were dying; but Setalvad found an opportunity to malign an entire nation.
When the court asked about the high court’s Order, senior advocate C.U. Singh, told the court that the bail application was not reasoned. Even the Solicitor General accepted that the Order by the Gujarat High Court rejecting Setavlad’s bail plea was passed without merit.
What transpired through the day
Earlier in the day, the Gujarat high court rejected Setalvad’s bail petition and asked her to surrender immediately. Setalvad, who was first arrested on June 25, 2022 on charges of alleged falsification of evidence to implicate innocent persons in connection with the 2002 Gujarat riots, has been out on bail since September 2, 2022.
In the urgent hearing in the evening when the two-judge Bench of the Supreme Court heard a special leave petition challenging the Order of the high court, the Solicitor General of India Tushar Mehta vehemently opposed the interim bail application, saying that the accused took the system on a joyride as an entire state was maligned and witnesses were tutored.
He relied on the Supreme Court’s June 24, 2022 judgment in Zakia Ahsan Jafri versus State of Gujarat & Anr and argued that the court does not have the benefit of the evidence which was extensively examined by the high court.
The division Bench of Justices Abhay S. Oka and Prashant Kumar Mishra observed that due to a difference of opinion between the two judges on the Bench, the matter shall be placed immediately before a three-judge Bench constituted by the Chief Justice of India Dr D.Y. Chandrachud.
Background
In Zakia Ahsan Jafri, a Supreme Court had dismissed the plea of Zakia Jafri, widow of Indian National Congress leader and former member of Parliament, Ehsan Jafri, who had alleged the role of the Gujarat government in hatching a larger conspiracy leading to the post-Godhra carnage.
On June 24, 2022, the Bench had held that the 2002 Gujarat riots were spontaneous and the allegations of a larger conspiracy were unfounded.
Setalvad, former Indian Police Service officer of the Gujarat-cadre, Sanjiv Bhatt, and former director-general of police in the Gujarat police, R.B. Sreekumar, were arrested immediately based on the observations made by the court in the judgment.
In paragraph 88 of the judgment, the court observed: “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.
“Intriguingly, the present proceedings have been pursued for the last 16 years (from submission of complaint dated June 8, 2006 running into 67 pages and then by filing protest petition dated April 15, 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 against in accordance with the law.”
Setalvad was first arrested on June 25, 2022. A first information report (FIR) was registered by the Gujarat Police against her on the basis of a complaint filed by D.B. Barad, a police inspector of the Ahmedabad Crime Branch, for offences under Sections 468 (forgery for purpose of cheating), 471 (using as genuine a forged document or electronic record), 194 (giving or fabricating false evidence with intent to procure conviction of capital offence), 211 (false charge of offence made with intent to injure), 218 (public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) and 120B (punishment of criminal conspiracy) of the Indian Penal Code, 1860 (IPC).
Setalvad bail application was rejected by the additional principal judge, City Court, Ahmedabad on July 30, 2022. She challenged the sessions court Order in the Gujarat High Court. On August 3, 2022, the high court issued a notice to the Gujarat government but listed the matter to be heard only on September 19, 2022.
Setalvad approached the Supreme Court challenging the Order of the sessions court as well as the delay in the Gujarat High Court in hearing her bail matter. On August 22, 2022, the Supreme Court issued notice to the Gujarat government.
On August 25, 2022 the Gujarat government sought an adjournment stating that there was nothing special about Setalvad’s plea that merited an immediate hearing. On September 2, 2022 a three-judge Bench of the Supreme Court comprising the former Chief Justice of India Uday Umesh Lalit, and Justices S. Ravindra Bhat and Sudhanshu Dhulia granted interim bail to her, while expressing concern over the delay in the high court regarding her bail plea.
Setalvad was arrested immediately after the Supreme Court dismissed the petition of Zakia Jafri, and the subsequent statement of Union Home Minister Amit Shah, who claimed her non-governmental organisation Citizen for Justice and Peace gave baseless information about the 2002 Gujarat riots to the police.
During the post-Godhra carnage, Ehsan Jafri was pulled out of his house by a riotous mob and hacked to death in Meghani Nagar, Ahmedabad. His limbs were dismembered and mutilated, and his body was set on fire in front of his wife. He, along with 69 others who had taken refuge in his house, were massacred in what came to be known as the Gulbarg society massacre.
Zakia Jafri accused 63 persons, including the then chief minister of Gujarat and the current Prime Minister of India, Narendra Modi, several ministers of Gujarat government, high-ranked police officials and other bureaucrats of a larger conspiracy and abetment of crime that resulted in the post-Godhra carnage.
She alleged deliberate and wilful dereliction of duty on part of state officials in preventing the pogrom. She complained of bureaucratic inaction, police complicity, hate speech and a “conspired unleashing of violence”.
As per the FIR, there is an accusation against Setalvad under Section 194 (giving or fabricating false evidence with intent to procure convention of capital offence) of the IPC that she fabricated facts, documents and evidence and also tutored witnesses, making them depose on pre-typed affidavits.
The FIR further stated that Zakia Jafri’s cross-examination had also borne out this fact, as she had indicated that she was tutored by Setalvad.
