SC grants relief to Teesta Setalvad and husband; Gujarat Police fails to explain the need for custodial interrogation

Granting relief to social activist Teesta Setalvad and her husband, a Supreme Court Bench comprising of Justice Dipak Misra and Justice A.K. Goel has directed the Gujarat Police to refrain from arresting them in a case which alleged embezzlement of funds for a museum at Ahmedabad's Gulbarg Society which witnessed the most horrific form of killing during Gujrat riots of 2002. The direction came while the bench reserved its judgment on a plea seeking anticipatory bail for the couple.There was formidable contingent of lawyers present in the Court for Ms .Teesta Setalvad. Apart from Mr Kapil Sibal who argued the case, Mr.K.K Venugopal, Andhyarujina, Rajiv Dhawan, Dushyant Dave, Indira Jaisingh, Huzefa Ahmadi, Kamini Jaiswal, Prashant Bhushan were present in the court to express their solidarity. For State of Gujrat Senior Advocate Mahesh Jethmalani appeared.The matter was transferred to the present Bench from the Bench headed by Justice Mukhopadhaya and Chief Justice of India H.L. Dattu to a Bench headed by Justice Misra without assigning any reasons. The judges have not openly recused themselves from the case. But a statement issued by Advocate Prashant Bhushan gives enough clues, he explains that the Judges should have recused themselves. He says,“It has been brought to my notice that Mr. Narendra Modi was an invitee of and recently attended the weddings of the children of Justices Mukhopadhaya and Ramana, who are hearing the case of Teesta Setalvad. The allegation of Teesta in this case is that she is being hounded by the Gujarat Police since she had played a leading role in exposing the role of Modi in the Gujarat carnage of 2002 and is seeking accountability for it. In these circumstances the question has arisen whether it would be appropriate for these judges to hear this case.The Principles for a judge recusing from a case have been laid down by the Supreme Court in the 1987 case of Ranjit Thakur, where the court laid down that when a judge asks the question whether he should recuse himself from a case, the correct principle is not to ask “Will I be biased?” but to put himself in the shoes of the litigant before him and ask, “Will the litigant before me have a reasonable apprehension of bias?”The code of Conduct for judges framed in 1999, says that “Justice must not merely be done but it must also be seen to be done.” It further says that, “A judge shall practice a degree of aloofness consistent with the dignity of his office.” It further says that a judge shall not decide a matter in which a friend is concerned. A consistent reading of this code requires that a judge should not socialize with politicians unless they are his close personal friends, and if so they should not hear cases concerning them. A person in Teesta's position can reasonably apprehend that Modi must have been invited to the weddings of the judges' children because they are his personal friends and in which case, she can reasonably apprehend bias in this case. I therefore feel that this is a case where the judges would be well advised to recuse themselves from the case, in order to, as the code of conduct says, “reaffirm the people's faith in the impartiality of the judiciary."The matter reached Supreme Court by way of an appeal filed by Setalvad and her husband against the Gujarat High Court’s order denying anticipatory bail to them. While rejecting her anticipatory bail plea, the High Court criticized the couple for allegedly wrongfully spending the funds collected to help the 2002 Gujarat riot victims. The Court observed, “The facts of this case are quite shocking and disturbing. How can one seek materialistic pleasure and happiness at the expense of poor and needy persons? How can one even use five paise which is meant for the poor and the needy? The facts of this case reflect the sorry state of affairs of NGOs. The donations are made with lot of trust and hope that ultimately the money would reach the poor and needy. However, here is a case where in the name of the poor, needy and unfortunate riot-affected victims, lakhs of rupees was received and embezzled.”The case was considered by the High Court as a fit case of custodial interrogation in public interest.Senior Advocate Kapil Sibal began his argument by saying that no one was above law and anyone committing any wrong, whoever he or she may be, cannot get away with the law and this "I am saying with all humility". He paused for a while and said “State is also not above law”. His contention was that in such a case, even the State cannot commit any wrong against the people who have been putting up a fight against it.Highlighting Setalvad’s legal struggle, he said there have been six FIRs against them in which they were protected by the courts and the case at hand was the seventh FIR, in which "wrong" facts have been made the basis for booking them.The Bench made it clear at the outset that it seemed to be a case of anticipatory bail and hence the onus was on Gujarat police to...

SC grants relief to Teesta Setalvad and husband; Gujarat Police fails to explain the need for custodial interrogation

Apoorva Mandhani

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