Prashant Bhushan - Hounding Of Teesta Setalvad: Attempts to arrest her and subject her to “custodial interrogation” are uncalled for
distressingly, however, we are also seeing increasing social
consanguinity between politicians and judges. Gone are the days when judges
kept aloof from politicians.
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 Gulbarga 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 interrogation”, 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 existence 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 community, 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 habitually resort to
arresting anyone accused, particularly if they have a motive to do so or if the
powers-that-be 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 multiple ways, which include
post-retirement jobs, sanctioning of foreign trips, medical treatment in
foreign countries and so on. More distressingly, however, we are also seeing increasing
social consanguinity 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 powerful and fascist
executive, our rights and liberties are truly in dire straits.
See also
How power trumps justice / Very short list of examples of rule of law in India
To understand the seriousness of the charges against Shah, it is pertinent to look back at the criminal cases against him and try to grasp their significance in the present context
'सत्यमेव जयते लेकिन सवालिया निशान के साथ' // Satyamev jayate? Does truth always triumph?
BJP candidate alleges manhandling by AAP workers / What happened to the EC Notice of April 2014 to Narendra Modi for violating the R.P. Act?
Very short list of examples of rule of law inIndia
The Assassination of Mahatma Gandhi
How power trumps justice / Very short list of examples of rule of law in India
To understand the seriousness of the charges against Shah, it is pertinent to look back at the criminal cases against him and try to grasp their significance in the present context
'सत्यमेव जयते लेकिन सवालिया निशान के साथ' // Satyamev jayate? Does truth always triumph?
Very short list of examples of rule of law in
The Assassination of Mahatma Gandhi
Ulema now demand expulsion of Taslima Nasrin
Terrifying implications of the Staines judgement
Murder of TP Chandrasekharan 2012
Terrifying implications of the Staines judgement
Murder of TP Chandrasekharan 2012
