Author: Kartikeya Tanna
Publication: Firstpost.com
Date: March 23, 2015
URL: http://www.firstpost.com/india/teesta-setalvad-bail-a-bizarre-case-of-supreme-courts-exceptionalism-2168059.html

The case against Teesta Setalvad, based on a complaint filed by residents of Gulbarg Society on allegations that she and her husband Javed Anand, trustees of Citizens for Justice and Peace and Sabrang Trust, for forgery and criminal breach of trust of the 2002 riot victims has taken a bizarre turn.

The complaint, in essence, alleged that funds collected by the two trusts in memory, and with the help, of Gulbarg Society victims for certain promises (construction of a museum and reconstruction of their homes) were instead used for personal expenses of the two.

In what should have been a simple case of whether or not to grant anticipatory bail to the two to avoid arrest by the Gujarat Police, the two-Judge bench of the Supreme Court has instead referred the matter to a larger bench. The full text of the judgment can be accessed here.

First, some history.

Following a complaint filed by residents in March 2013, the Gujarat Police registered an FIR after almost 10 months of verifying the details of the complaint. Apprehending arrest on the filing of the FIR, Teesta and Anand filed an unsuccessful application for anticipatory bail in the city sessions court. Their appeal to the Gujarat High Court was also unsuccessful, thus allowing the Gujarat Police to detain Teesta and Anand for custodial interrogation.

It is useful to state here that the applications and appeals by Teesta and Anand were for anticipatory bail - which is different from regular bail. The purpose of the former is to approach the courts to grant relief from custodial arrest even before a case is made out. Regular bail is when the process of prosecution has commenced or, at times, when there is an appeal to a higher court after a lower court's conviction is pending. The considerations in either case are substantially different.

Supreme Court jurisprudence on anticipatory bail indicates that such bail must be granted only in exceptional cases where it appears that a person might be falsely implicated, or be subject to a frivolous case, or if there are reasonable grounds for holding that he/she is not likely to abscond or otherwise misuse liberty while on bail.

The Gujarat High Court felt custodial interrogation was necessary because, among other reasons, Teesta and Anand never remained present before any investigating agency and have, in the High Court’s words, "employed every means to avoid the due process of law".

The judgment cites "stock replies" given by the two - either feigned loss of memory, or had asked the investigating authorities to give questions in writing. On a couple of questions relating to the production of vouchers, IT returns and other documents, they replied that it is "neither necessary nor desirable" to respond and this information was being sought only to "harass and defame us".

It is critical to point out here that it was only one week after arguments were concluded and judgement was kept reserved that Teesta's counsel tried, unsuccessfully, to produce vouchers and other documents on the court's record, perhaps apprehending that the High Court would be rejecting their application for anticipatory bail. The court particularly noted some materials on record which indicated that the two may have exerted pressure or influence on auditors (based out of Mumbai) who did not cooperate with the investigation.

The 63-page Gujarat High Court judgement, a must-read, can be accessed here.

Perhaps unprecedented in recent history, within hours of the Gujarat High Court judgment (12 February), Teesta's counsels before the Supreme Court got it to stay her arrest until the next day by mentioning the matter before a bench led by the Chief Justice of India (most likely, hearing another matter), citing the emergence of an "extraordinary situation".

A regular bench then heard the matter the next day giving time to Teesta's counsel Kapil Sibal to file additional documents and staying the arrest for a week. However, the bench reportedly made oral observations that the allegations against the two were "grave" and made it clear the Supreme Court would not let them make it a "political issue".

Come 19 February, news hit the stands that the bench that heard the matter on 13 February, which discouraged Teesta's counsel from making it a political issue, was replaced by a new bench headed by the CJI. According to this Times of India report, an inquiry with the court registry revealed that none of the judges on the earlier bench had recused themselves.

The Supreme Court registry later clarified, although only partially, giving rise to greater doubts. While the registrar said that one of the judges had recused himself, he did not inform the press which judge sought a recusal. As the Times of India reported, both judges had told the newspaper that they had neither orally nor in writing conveyed their desire to recuse themselves.

When the new bench did hear the case, it told the Gujarat Police that it will tell Teesta to produce the documents regarding the case while staying the arrest till it pronounced its judgement. Again vital to note here that, although every media report stated this direction from the court to Teesta to cooperate with the Gujarat Police, the written order does not contain a single thing about ordering Teesta and her husband to cooperate.

Finally, when the judgement came out last week, there is only one word to describe it - bizarre. It cited Bolingbroke, Edmund Burke and John Adams, the second President of the US, on the importance of liberty. It then stated that because there was an assertion by the Gujarat Police about the non-cooperation of Teesta and Anand, the Supreme Court thought it appropriate that the matter be heard by a larger bench.

Why a larger bench? There is absolutely no explanation for it. The Supreme Court may well disagree with the Gujarat High Court’s findings and grant Teesta and Anand anticipatory bail. Of course, in doing so, it has to explain why it disagrees with the High Court’s elaborate rationale.

A matter is referred to a larger bench if there is a complex issue of constitutionality or if there is a conflict between a former two-judge bench’s order and the one sought to be pronounced by the current bench. None of these were at play here. It just has to take a stand that, based on the facts and circumstances, it does or does not think it fit to uphold the Gujarat High Court judgment.

Yet, the Supreme Court, in its wisdom, decided on something inexplicable. This view is confirmed by senior advocate KK Venugopal. Crucially, however, while the process of reference to a larger bench remains pending, the stay on Teesta and Anand's arrest would continue to be in force.