Growing up in the 1990s, textbooks in most Indian schools taught the value of ideas like Satyagraha in shaping the political vocabulary for engaging with the British hierarchy in the early twentieth century.
It is for this reason that audacity is never appreciated, never allowed to cultivate or grow, because it challenges social strictures, disturbs the status quo, and poses uncomfortable questions. It is among the most criminalised qualities, and understandably so.
The Said and the Unsaid of the Zakia Jafri Judgment
On 19 July 2023, the Hon’ble Supreme Court of India finally granted bail to Social Activist Teesta Setalvad after her bail application was rejected by the trial court and the High Court of Gujarat.
While setting aside the judgment of the High Court of Gujarat, holding that its findings are 'perverse', the Court cited 'propriety' as the reason for not commenting on the correctness of the judicial approach in the judgment in Zakia Jafri’s case, Para 88 of which forms the genesis of the case against Ms Setalvad.
While I agree that the three-Judge Bench in Ms Setalvad’s case had little choice in the matter, being of co-equal strength with the Bench that had delivered the judgment in Zakia Jafri's case, its reference to propriety as the reason for not delving into the issue, tells its own tale.
Perhaps, there is a narrative between the lines which will be spoken only in the court’s corridors, and some third or fourth-generation professional may even chronicle it in a publication in a few years.
The significance of Para 88 of that judgment lies in what it chooses to cite as the most criminal element in the actions of the now-accused Teesta Setalvad. It states,
“Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design.”
Teesta Setalvad was arrested the very next day after the pronouncement of the judgment with the Gujarat police having wasted no time in registering an FIR against her, purportedly in view of the judgment of the Supreme Court.
Her bail application then came to be rejected by the Sessions Judge, and even interim relief was denied by the High Court of Gujarat while hearing her appeal.
Ms Setalvad stepped out of jail only when the Hon’ble Supreme Court granted her interim bail. That interim reprieve to Ms Setalvad’s liberty was also cut short when the High Court of Gujarat not only dismissed her appeal but directed her to surrender immediately, thus, denying her time to appeal the decision before the Supreme Court.
This haste in seeking to place Teesta Setalvad behind bars has also been commented upon by the Supreme Court, which states, “We fail to understand as to what was the alarming urgency to direct the appellant to surrender immediately, particularly, when the appellant was enjoying the interim protection under the orders of this Court from 2nd September, 2022.”
But do we really fail to understand why, or is it again meant to convey more than what literal words promise to suggest? Perhaps one will never know.
What Happens to Bail in Politically Sensitive Cases? And Why?
Lawyers practising predominantly on the criminal side, without exception, would speak from their experience that in cases which are politically "sensitive” or of any particular political interest, our courts find it hard to grant bail at the first instance. This view has also been echoed by the Hon’ble Chief Justice of India, albeit in a public event, that District Judges find it hard to grant bail in certain cases as they harbour a fear that they would be targeted.
The growing tendency, that persons of interest to the government(s), would have to travel all the way to Bhagwan Das Road or a High Court for securing their liberty, is a sorry commentary on the present status of bail jurisprudence in India.
Be it Teesta Setalvad, Siddique Kappan, Sudha Bharadwaj, or Mohammad Zubair – none of them secured liberty from the trial court at first instance. They had to litigate either in the High Court or Supreme Court, or both, to step out of jail.
Their final bail orders reveal how they squarely qualified for bail by simply applying settled law to the facts of their case. Yet, thegrassroots judiciary found it impossible to release them. This, by itself, poses some very troubling questions that no one wants to discuss.
The Supreme Court often uses the phrase "sentinel on the qui vive” to describe itself as the guardian of fundamental rights under the Indian Constitution. Well-intentioned as that may be, I find the phrase ill-suited for India’s top court. Sentinels are foot soldiers, on the ground and on alert, guarding against all possible intrusions.
In the case of personal liberty, more often than not, the greatest threat comes not from criminals but from the police, affecting either illegal or unwarranted arrests.
The Supreme Court, at best, is the CEO of the company providing the sentinels who are working under their respective supervisor(s) – the High Courts.
This is not simply an argument for a semantic change, but a cultural reset that needs to be injected into the bail jurisprudence at the trial level. The onus to grant bail should never be more than the onus to deny bail. Besides, that inertia in favour of dismissing bail in fairly straightforward cases, simply because they may be “politically sensitive”, has to be pushed back against.
A particular bench of the Supreme Court has gone hoarse laying down and reiterating the law on bail in the case of Satender Kumar Antil and connected matters, yet case after case emerges where the jurisprudence of bail is not being followed even by senior judges at the trial level. So much so that the trial judges are now being directed to undergo judicial training in some cases for not correctly applying the law on bail.
Bail Legislation Warrants Renewed Focus
Audacity is rooted in courage, in a desire to challenge existing power structures, to swim against the tide in stormy waters, all for an honest day’s living. Audacity should be a highly celebrated human quality, given how rare it is to find in a pliant world.
So perhaps, the need of the hour is for a show of audacity to protect the rule of law, to bring back the days of “bail is the rule and jail is the exception”.
This is not solely a legal task, but a cultural and ethical one, in which members of the Bar must take the lead so that Judges who are vulnerable feel emboldened, protected, and secure so that they may exercise their duty without fear or favour (or a deadly cocktail of both).
How audacious would it be to have remand applications rejected on the very first day when there is no justifiable ground emerging from the case diary for arrest, even when the police invoke UAPA, PMLA, and other legislative weapons at their disposal?
How audacious would it be for young political leaders not to spend more than 1000 days in prison, only to have a shot at liberty from the Supreme Court?
And yet, how audacious would it seem now, if they walk out of jail tomorrow morning?
(Soutik Banerjee is a Delhi-based lawyer. This is an opinion piece and the views expressed are the author's own, The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)