23, Feb 2015 | Rajeev Dhavan

By Rajeev Dhavan Published: 00:07 GMT, 23 February 2015 | Updated: 00:07 GMT, 23 February 2015

Coming down from Sikkim, you will see the River Teesta wind its way down resplendent with natural energy gurgling down to Siliguri, where it evens out. I am told Teesta Setalvad was named after the river — perhaps mystically drawing energy from it.

Amongst the secular forces which came together to speak for the victims of the Gujarat holocaust of 2002 and combat communalism were Teesta Setalvad and the trusts: Sabrang and Citizens for Justice and Peace. The BJP rulers of Gujarat have never taken too kindly to this intervention, and attacked them using the strategy of criminal intimidation. These kinds of counter-interventions by governments and corporates are called SLAPP (Strategic Litigation Against Public Participation), a term coined and popularised by two professors from Denver.

Examples abound, including those of in India against Hussain, the Centre for Science and Environment (CSE), Medha Patkar, Narmada Andolan, and others. In India, there is great use of litigation to intimidate the public voice through civil and criminal actions. The Gujarat government excels in this.

Arguments in case 

During argument in the Supreme Court in Teesta’s case, State counsel Mahesh Jethmalani all but admitted Gujarat’s dubious communal antecedents for the past, with Kapil Sibal (Teesta’s lawyer) taking this as an admission.

The case against Teesta is at the preliminary stage of granting anticipatory bail for breach of trust, cheating, forgery and an income tax offence. Before the Supreme Court, Jethmalani junior dropped pressing the forgery and tax offences (hopefully buried forever), and proceeded to rest his case on breach of trust and cheating. He asserted only two grounds for denying bail to Teesta, namely “rank non-cooperation” and “tampering with witnesses”, disclaiming it as a case of ‘malafide prosecution’.

Anticipatory bail was invented by the new Indian Criminal Procedure Code (CrPC) 1973, breaking with its imperial predecessors on the recommendation of the Law Commissions: 41st Report (1969) whose reasons for recommending anticipatory bail was: “The necessity of granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases in getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency shows signs of steady increase.”

This is even more true now the usual reasons for granting bail are (i) no risk of absconding (ii) cooperating with the investigation (iii) no need for custodial interrogation in the facts of the case.

It is necessary to drill into the heads of the police, oppressive governments and officials and the judiciary, Krishna Iyer’s  splendid judicial aphorism: “Bail not Jail”. In 1976, the Supreme Court in Balchand (1976) judicated that anticipatory bail cannot be excluded even in arrests under the Defence and Internal Security of India Rules. In Gurbaksh (1980) the Constitution Bench refused to accept that anticipatory bail cannot be granted for blatant corruption or economic offences, adding that a “special case” does not have to be made out for anticipatory bail.

New remedy 

The fact that it is a new ‘extraordinary’ remedy does not mean that it has to be exercised only in the rarest of rare cases. Equally, in Siddharam (2011), the Court clarified that anticipatory bail was not only for a limited period. This puts this in focus Teesta’s case. One of the prime charges was that Teesta and others had promised a Gulbarg memorial on land to be bought from victims who didn’t want to live there any more. The plan failed due to lack of funds for the memorial.

Carefully looked at, leave alone a case of breach of trust, even a case of breach of contract is not made out. Those who gave money for the memorial clearly indicated it could be used for other purposes. Who was cheated? No case was made out.

This was not a case of quashing the FIR, but for anticipatory bail. The only argument available to Gujarat Police was Teesta was not cooperating with them in the investigation. A mere look at the record shows that some 11,000-odd pages of record were given to the Gujarat High Court and a disc to the police. Audited accounts were also given. Full cooperation was extended.

The Gujarat government harped on the trust’s beneficiaries not getting their due. Such mighty ignorance of the law of trusts is unforgiveable. The Indian Trusts Act, 1882 deals with private trusts involving beneficiaries. Public Trusts The Public Trusts have no beneficiaries in that sense, just charitable purposes. The police and denying high court Judge Pardiwala also got the facts on contributions to the trust wrong. Trustees contributed 71%. Curiously they were not aggrieved. Was the ‘complainant’ collaborating? The Law Commission presciently saw the misuse of prosecutions opposing bail at the instance of political rivals. What is strange is the Gujarat High Court’s Justice Pardiwala who denied bail, launched into a harangue on activists and NGO’s in general and targeted Teesta’s activities as a one person show which trustees who intervened in the Supreme Court denied.

Justice Pardiwala’s outrage was clearly anti-NGO and pro-government, adding to the misuse of power. One other footnote: Chief Justice H.L. Dattu assigned the matter to a Mukhopadhaya-Ramana bench and, then, to the Mishra-Goel bench’ which granted Teesta bail. Why? There was some public outrage that both Mukhopadhaya’s and Ramana’s children’s weddings were attended by Modi. Was Modi a personal friend? Or were they being nice to Modi?

Don’t victimise activists. They are the fifth pillar of democracy.

(The writer is a Supreme Court lawyer)

***This Article was originally published by the Daily Mail. It can be found here.