teesta
TRANSCRIPT
The Times of India
Title : Hounding Of Teesta Setalvad
Author : Prashant Bhushan
Article Date : 02/18/2015
The case of Teesta Setalvad is a chilling example of what can still happen to even highly
acclaimed and well connected persons in this country if they take on those in authority , and
especially if the person you have taken on becomes the most powerful person in the country. It is
also a sad commentary on how a supposedly independent judiciary does sometimes appear to get
influenced by executive authority. For the last 13 years Teesta has fought a valiant and
sometimes lonely battle to bring the perpetrators of the 2002 Gujarat carnage to justice. In this
battle, she produced considerable evidence to demonstrate the role of Narendra Modi in abetting
the carnage, and kept raising her courageous voice against him. In retaliation, the Gujarat police
registered several cases against her and repeatedly tried to arrest her. But in earlier cases the
courts came to her rescue and stayed her arrest and investigations against her. But now, in a
complaint of misappropriation of trust funds filed by a purported resident of Gulbarg society (not
by any member or donor of the trust), a single judge of the Gujarat high court has not only
dismissed her application for anticipatory bail, but has also urged the police to arrest her and
subject her to “custodial interrogation“. The court has also made sweeping and prejudicial
allegations against her by relying only on allegations of the Gujarat police and completely
ignoring explanations provided by Teesta. Personal expenses incurred from her personal account
are taken to amount to misappropriation of trust funds, merely because some reimbursements of
trust expenses incurred from her personal account for the trust were made to her. The judge says
that she must not be granted anticipatory bail because she must undergo “custodial interroga
tion“, which everyone knows is a euphemism for torture. In India, as in most civilised countries,
the right to silence is a constitutional right of everyone accused of a crime. Though Teesta had
answered every question put to her by the police, they cannot compel any accused person to
answer questions. They can draw an adverse inference, but cannot compel answers by “custodial
interrogation“. Unfortunately , however, courts in India have not understood this simple
constitutional principle and still continue with the antiquated practice of rendering accused
persons to police custody and thus to police torture. Another unconstitutional and illegal practice
of the police, which unfortunately is also being sanctioned by courts, is allowing the arrest of
accused persons merely because there is an allegation against them. The police think that merely
an FIR against a person gives them the licence to arrest him. This has become an easy weapon in
the hands of the police to terrorise and torture innocent persons, who might be falsely accused of
offences.
Unfortunately the lower courts have been sanctioning this practice too, despite clear judgments
of the Supreme Court to the effect that the mere fact that the police have the power to arrest does
not mean that they can exercise that power just because there is a charge. The apex court has
said, “No arrest can be made merely because it is lawful for the police officer to do so. The exist
ence of the power to arrest is one thing. The justification for the exercise of it is quite another.“
Arrest during investigation is justified only if the accused if not arrested may flee from justice, or
he might tamper with evidence, or he has committed a heinous offence and arresting him is
essential for instilling a sense of security among the commu nity , or he is a habitual and violent
offender and is likely to repeat such offences unless arrested. None of these factors are normally
present in most cases, especially not in the one against Teesta. Yet the police ha bitually resort to
arresting anyone ac cused, particularly if they have a motive Chad Crowe to do so or if the
powersthatbe want it. Despite the Constitution makers having gone to great lengths to protect
independence of the judiciary , and the judiciary having withdrawn even the power to appoint
judges to itself, we are witnessing the continuing influence of the executive over the judiciary .
This influence is exercised in multi ple ways, which include postretire ment jobs, sanctioning of
foreign trips, medical treatment in foreign countries and so on. More distressingly , however, we
are also seeing increasing social consan guinity between politicians and judges. Gone are the
days when judges kept aloof from politicians. We now have the common spectacle of ministers
and sundry politicians attending weddings of judges' children and vice versa. If the judiciary also
allows itself to get influenced by a pow erful and fascist executive, our rights and liberties are
truly in dire straits.
The writer is a Supreme Court advocate and member of AAP's National Executive.