To Say Teesta Setalvad Should Be In The Dock Was Harsh : Supreme Court On Adverse Observations In Zakia Jafri Judgment

While hearing human rights activist Teesta Setalvad's bail application in a special sitting on Saturday night, a three-judge bench of the Supreme Court raised certain questions at the adverse observations made against her by another coordinate bench last year in the judgment in Zakia Jafri case. The bench observed that the "harsh words" used in the Supreme Court judgment against Setalvad made it impossible for to get bail.

"We could have understood had the bench observed that the conduct of the person need to be enquired into. But this Court directly observed that the person should be in the dock", Justice BR Gavai, who headed the three-judge bench, said during the hearing.

It may be recalled that in June 2022, a three-judge bench, which dismissed the petition filed by Zakia Jafri and Teesta Setalvad seeking investigation into alleged larger conspiracy by high state functionaries in the 2002 Gujarat riots, had observed in the judgment that the proceedings were pursued to "keep the pot boiling for ulterior design". Not stopping there, the bench had also called for criminal law action against the persons behind the proceedings, by saying that "all those involved in such abuse of process, need to be in the dock". The very next day of the Supreme Court judgment, the Gujarat ATS registered an FIR for falsification of evidence in relation to Gujarat riots cases, naming Teesta Setalvad - who had filed several cases on behalf of riot victims- as an accused. Former Gujarat ADGP RB Sreekumar and sacked IPS officer Sanjiv Bhatt - who had also given statements against the Gujarat Government functionaries- were named as other accused.

In September last year, almost two and half months after her arrest, the Supreme Court granted Setalvad interim bail till the Gujarat High Court decided her bail application. Yesterday, the High Court not only dismissed her bail application but also refused to grant her time to surrender before challenging the order in the Supreme Court. Since the High Court directed her to immediately surrender, her lawyers moved the Supreme Court urgently. A two-judge bench convened a special sitting at 6.30 PM to hear the matter. However, as the judges differed on the grant of interim protection, the matter was referred to a larger bench, which assembled at 9.15 PM.

Opposing the bail application, Solicitor General of India Tushar Mehta referred to the Supreme Court's observations in the Zakia Jafri case to argue that Setalvad was "not an ordinary criminal" and that she had maligned the State and the whole nation.

However, the bench, also comprising Justices AS Bopanna and Dipankar Datta, said that the Supreme Court would not have granted interim bail to Setalvad if the observations in Zakia Jafri case were to be treated as the final word.

"Mr.Solicitor, the earlier three judge bench has observed that she should be in the dock and proceeded in accordance with the law. Then the other bench, dealing with the matter in September, directed that interim bail be granted. If there were no valid grounds, they would not have granted this bail. They would have said the earlier bench has said that she should be in the dock", Justice Datta stated.

"These are quite harsh words, coming from the Supreme Court. What would the Magistrate or the High Court do when these words are said by the Supreme Court", Justice Datta added. The bench pointed out that the Gujarat High Court has also quoted the observations in Zakia Jafri case while rejecting the bail application.

"When it comes from the highest court, would any citizen be left with any remedy?We could have understood had the bench observed that the conduct of the person need to be enquired into. But this Court directly observed that the person should be in the dock", Justice Gavai weighed in.

The SG asked if the bench was sitting in appeal over the other judgment.

"Your lordships are criticising a three-judge bench. In that judgment, the Court was very very polite in observing what it did. It should have done something more", the SG said.

"Perceptions differ, that is all we can say", Justice Gavai replied while adding that the bench was considering only the question of interim protection. The bench also observed that if there was a difference of opinion among the division bench judges, they should have leaned in the favour of personal liberty.

"If there is a difference of opinion, you need to be in favour of liberty", Justice Datta said. Justice Gavai also concurred by saying, "when there is a difference, it is always in favour of liberty".

Ultimately, the bench stayed the High Court's order for a week, observing that the single judge was "not correct in granting even some protection" to the activist.