Need to test whether Teesta Setalvad’s incarceration is required in accordance with the law: Supreme Court

While the Supreme Court wanted to hear her bail plea today itself, the Gujarat Government’s counsel sought a short adjournment on the ground that he was not satisfied with the draft reply prepared by the state government, and that there was nothing special about the plea which merited immediate hearing, as she has been arrested in accordance with the law.

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THE Supreme Court earlier today adjourned the bail petition filed by civil rights activist and journalist, Teesta Setalvad, who was arrested for allegedly fabricating evidence to “frame innocent people” in the investigation of the 2002 riots in Gujarat, even as it observed that it has to decide whether the continued incarceration of Setavalad is needed. The bench, which comprised the Chief Justice of India (‘CJI’)-designate Justice Uday Umesh Lalit, and Justices S. Ravindra Bhat and Sudhanshu Dhulia, made it clear that it would hear the matter on August 30 as the first case.

The moment the bench assembled, senior advocate Kapil Sibal, for Setalvad, told the bench that he had to be present at that time before the special benches headed by the CJI, N.V. Ramana. He thus prayed that the matter be kept after an hour or so. Justice Lalit agreed to hear the matter at 2 p.m. However, Solicitor General of India Tushar Mehta, for the Gujarat government, requested two days’ time to put in the response of the government. He submitted that the draft reply of the state was ready, but he was not satisfied with it. He thus requested the bench to grant him a short accommodation.

Faced with the adjournment request, Justice Lalit told Mehta that the bench’s concern was that the person is behind bars. “You file your reply, we will take it up at 2 p.m.”, Justice Lalit told Mehta. Mehta, however, contended that there was nothing special about the case. The bench insisted that if the matter were to be adjourned, then the petitioner would continue to be in jail for another four days. Mehta was quick to retort that the petitioner is in jail in accordance with the law. This invited a remark from Justice Lalit that the court also needs to test whether her incarceration is needed in accordance with the law.

Mehta suggested that the matter may be listed on Monday. To this, Justice Lalit said that the present bench combination may not be available on Monday. Eventually, the bench agreed to list the matter on Tuesday, when the existing combination of the bench would be available to hear it. Sibal agreed to it.

On August 22, the bench issued notice to the Gujarat government on the petition filed by Setalvad challenging a Sessions court order denying her bail, as well as a high court order for delaying the hearing of her bail matter.

On June 25, the Gujarat Police Crime Branch, Ahmedabad lodged a first information report (‘FIR’) against her, as well as former Gujarat police officers R.B. Sreekumar and Sanjiv Bhatt, 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 (‘IPC’).

The accusation against Setalvad, inter alia, states that there is material in the final report submitted by the Supreme Court-appointed Special Investigation Team (‘SIT’), set up to inquire into the allegations that state government functionaries and officials had conspired to give effect to the 2002 Gujarat pogrom, which indicates that she had conjured, connected, forged and fabricated facts and documents and/or evidence; that she was also involved in the tutoring of witnesses and making them depose on pre-typed affidavits; and that Zakia Jafri, the widow of one of the victims of the pogrom, who had challenged the SIT’s clean chit to government functionaries before the Supreme Court, in her cross-examination, had stated that she knew her.

The FIR further states that Jafri’s cross-examination indicated that she was tutored by Setalvad and she followed the instruction given by Setalvad, and that Bhatt, Sreekumar and Setalvad, among others, had conspired to abuse the process of law by fabricating false evidence in order to get several persons convicted for offences punishable with the capital sentence, thereby committing an offence under section 194 of the IPC. This FIR immediately followed the Supreme Court’s judgment in Zakia Ahsan Jafri versus State of Gujarat & Anr., whereby it had upheld the clean chit given by the SIT to the then Chief Minister of Gujarat, and now Prime Minister, Narendra Modi, in the conspiracy allegations in the Gujarat riots.

Setalvad was arrested on June 26. Her bail application was rejected by the Additional Principal Judge, City Court, Ahmedabad on July 30. She challenged the Sessions Court order in the Gujarat High Court. The high court, on August 3, issued notice to the state government, but listed the matter to be heard only on September 19, showing no urgency.

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