The outrage over denial of bail to Teesta Setalvad and grant of remission to Bilkis Bano convicts shows it is not easy to erase recent history

THE Supreme Court is set to hear on Monday activist and human rights campaigner Teesta Setalvad’s plea for bail. Setalvad, who is currently under judicial custody at the Sabarmati Central Jail, Ahmedabad, for the alleged offence of fabricating evidence of conspiracy for the 2002 Gujarat riots, has a solid case against her continued incarceration, as a result of the Supreme Court’s June 24 judgment in the Zakia Jafri case. The judgment, authored by Justice A.M. Khanwilkar, who retired on July 29, named her and the former Gujarat police chief R.B. Sreekumar, as having made false allegations in the case, which required them to be in the dock. 

Although it is not clear what view the bench, headed by the Chief Justice of India-designate, Justice U.U. Lalit, and comprising justices S.Ravindra Bhat and Sudhanshu Dhulia will take on the bail pleas of both Setalvad and Sreekumar on Monday, it is obvious that the roles of both the Supreme Court and the Gujarat government have come under intense scrutiny for their omissions and commissions in the Gujarat-carnage related cases. 

On Friday, 11 academics of repute, affiliated with well-known universities abroad, issued a statement expressing their dismay over some of the recent judgments of the Supreme Court having a direct bearing on the future of civil liberties and human rights in India. They drew attention, in particular, to the judgment in the Zakia Jafri case, which, they said, raises three disturbing questions. 

First, since the petitioners had challenged the findings of the Special Investigation Team’s (‘SIT’) report that gave a clean chit to the Gujarat government for the riots following the Godhra incident, and asked the Supreme Court to order an independent investigation, for the court to dismiss their appeal on the basis of the very same impugned SIT report, seemed to them to be unjust. 

Second, the scholars pointed out that while dismissing their appeal, the court has quite gratuitously and wholly unfairly attributed ulterior motives to the petitioners. They expressed their dismay, by citing from the judgment: “If any patient, prolonged, peaceful, and entirely legitimate pursuit of justice through the due process, is called “keeping the pot boiling”, then this remark, quite apart from being offensive, discourages people from approaching the Court on any matter relating to excesses or dereliction on the part of the executive.”

Third, the scholars said the court had passed these uncalled-for obiter dicta without even giving a hearing to those against whom these remarks are directed; this, they claimed, sets an unfortunate precedent in jurisprudence. They urged the Supreme Court to take suo motu notice of the fall-out of the judgment in this case, to expunge the derogatory remarks contained in it, and to dismiss the cases against those who have been arrested on the strength of these remarks. They pointed out that the judgment emboldened the executive to arrest the co-petitioner, Setalvad and a witness, Sreekumar, both of whom were also denied bail.  

The scholars who signed the statement include British political theorist Bhiku Parekh, member of the House of Lords, which is the upper house of the British Parliament; American linguist, philosopher, cognitive scientist, historical essayist, social critic and political activist Noam Chomsky; Indian-American anthropologist Arjun Appadurai; American political theorist Wendy Brown; American scholar of Sanskrit, the intellectual and literary history of India, and comparative intellectual history, Sheldon Pollock; American philosopher Carol Rovane; Canadian philosopher Charles Taylor; American philosopher Martha Nussbaum; American economist Robert Pollin; Indian philosopher Akeel Bilgrami; and American economist Gerald Epstein.

The Supreme Court’s hearing of the bail pleas of Setalvad and Sreekumar on Monday comes in the midst of widespread shock and disbelief over the Gujarat government’s grant of remission to 11 convicts in the Bilkis Bano gangrape case, which has shaken the conscience of all right-thinking people. 

In a powerful piece in The Hindu on Saturday, lawyer and researcher Neetika Vishwanath questions the injustice of exceptionalism evident in the remission decision of the state government. A story in Hindustan times on Saturday, citing records, reveals that the Bilkis case convicts threatened witnesses in the past, thus vindicating concerns about what their premature release has in store for key witnesses in the case.

Bano reportedly asked: “How can justice for any woman end like this?” More significantly, she underlined that no one enquired about her safety and well-being before taking such a big and unjust decision. She has appealed to the Gujarat government to undo this harm, and give her back her right to live without fear and in peace.

The United States Commission of International Religious Freedom on Friday described the premature release of 11 convicts as a “travesty of justice”, which only added to the “pattern of impunity” enjoyed by those accused of anti-minority violence in India. 

Here are some recent articles published by The Leaflet to bring more context to these stories

  • In an opinion piece, published on June 27, our Editorial Board member, lawyer, researcher and writer Arvind Narrain explained why the Supreme Court’s judgment in Zakia Ahsan Jafri versus State of Gujarat bodes ill for democracy.
  • On Friday, lawyer Paras Nath Singh, in a detailed explainer, broke down the issues in the Gujarat government’s ill-advised move to prematurely release the 11 convicts in the Bilkis Bano case, purportedly on the basis of a flawed Supreme Court order. This is also one of the most-read stories of the previous week. 


Kerala writer, accused of sexual harassment, gets relief again, because his victim wore provocative dress

In a brief on Thursday, our staff writer Sarah Thanawala revealed how the Keralite writer, Civic Chandran, who is an accused in multiple sexual harassment cases, secured anticipatory bail in two separate cases on the basis of regressive reasoning, both from the same judge. In another piece, Thanawala explained how a recent Rajasthan High Court judgment justifying parole for the purpose of progeny is flawed.

  • Further, highlighting the age of the accused, the court held, “Even admitting there was a physical contact it is impossible to believe that a man having aged 74 and physically disabled can forcefully put the defacto complainant in his lap and sexually press her breast. So it is a fit case wherein the accused can be granted bail”.
  • The Sessions Court analysed Section 354A of the Indian Penal Code, which defines and punishes acts of sexual harassment. In its analysis, the court focussed on the photographs produced by the accused, published by the complainant on social media, and observed “…the defacto complainant herself is exposing to dresses which are having some sexual provocative one. So Section 354A will not prima facie stand against the accused”

I might have taken a different view: Justice L.Nageswara Rao on the Supreme Court upholding the constitutionality of PMLA 

In a report published on Tuesday, our staff writer Gursimran Kaur Bakshi covered the Question and Answer session held during the webinar hosted by The Leaflet on the 75th anniversary of Indian Independence. Justice L. Nageswara Rao, who retired from the Supreme Court recently, delivered a lecture at the webinar on ‘Life and Liberty: India at 75 years of Independence’.

  • Justice Rao explained that the aspect pertaining to liberty under the Prevention of Money Laundering Act was mainly related to the Enforcement Case Information Report (‘ECIR’), which is equivalent to a First Information Report. He told the audience that the issue is that the ECIR is not given to the persons when they are called to question by the Enforcement Directorate. “They really do not know whether they are accused or witnesses, and what it is that is sought from them,” he said.
  • On being asked whether the concept of liberty has undergone a change after the judgment, he said, “I am afraid not. Concept of liberty, which has been evolving over the past 75 years, is clearly to the effect that courts are in favour of protecting the personal liberty of an individual.”

Trending stories 

Loss of the moral universe in a neoliberal order, authored by Dr. Resmi P. Bhaskaran on Monday, as part of The Leaflet’s special issue on the 75th anniversary of Indian Independence, is one of the most-read stories of the previous week.  According to Dr. Bhaskaran, the lack of humanity and morality is an acceptable aspect of the neoliberal world, and social and economic justice concepts, hence, do not arise among those who control the market. Those who receive the benefit of neoliberalism have a lot to lose if they challenge its externalities, she says. 

  • It is important to note in this regard that the basic minimum needs policies promoted by the International Labour Organisation in 1972 provided the comfortable launching for the liberalisation of labour policies. Instead of offering the best work conditions and the payment, it allowed firms to maintain a minimum basic pay and labour conditions.
  • A stark socio-economic divide exists not just in terms of humane ideals, but also the moral values needed to uphold to facilitate a free market.

Britain had no option, but to grant independence to India on August 15, 1947, authored by senior advocate, Mohan V.Katarki, argues that the independence of India was neither a voluntary withdrawal nor a forced extraction by a nationalist revolution.  The decolonisation of the British Empire, on which the sun never set, was a case of failed politics of bait and switch against the mass non-violent movement, he says.  However, he leaves it to historians to ponder over whether the British were compelled to grant independence, although the evidence suggests that the British did so in order to avoid India lapsing into civil unrest.  

In the pipeline

With the outgoing Chief Justice of India, N.V.Ramana, retiring on August 26, our attention is likely to be focussed on what he achieved and what he didn’t during his term as the 48th Chief Justice of India from April 24 last year.  

Although the CJI-designate, U.U.Lalit, will have a very limited tenure of 74 days in office, he thinks it is as good and as big a tenure as an opportunity can actually afford him.  He is determined to make the most of it, in terms of laying down certain things, which he considers to be the healthy practices.   Justice Lalit has made it clear, however, that he would take the entire body of judges in confidence on whatever reform he would like to implement for the future, and therefore,  his limited tenure is not really a limitation. Needless to add, his limited tenure would be full of suspense to all. 

And coming up this week, we’ve got: 

  • Opinion pieces on Muslim women, written by Almas Shaikh. The articles in four parts will focus on Bilkis Bano and arbitrary decision-making in the criminal justice system, Sulli and Bulli deals and the intersectional discrimination, representation of Muslim women in employment and in education. 
  • An opinion piece in which Vijayalakshmi Balakrishnan revisits Myron Weiner’s Child and the State in India and Krishna Kumar’s Political Agenda of Education.
  • A brief in which Nabeela Jamil weaves an impressionistic piece on the recent demolitions in Delhi. 
  • An explainer written by Shadan Farasat and Dhruv Bhatnagar on the Twitter’s case against the Union Government before the Karnataka High Court.
  • A brief on the relief available to the flat and plot buyers written by Wasim Mohammad.
  • A brief by Shaileshwar Yadav on the Ramana effect, in the context of his tenure coming to an end on August 26.


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