Moderation, Reserve: Did SC Contradict Its Own Principles in Zakia Jafri Order?

The FIR against Teesta Setalvad and her detention came within twenty-four hours of the Supreme Court judgment.

(Image altered by The Quint)

When the Supreme Court on Friday, 24 June, cast aspersions about there being a “coalesced effort” and “devious stratagem adopted to keep the pot boiling” for “ulterior design”, the top court did more than just reject Zakia Jafri’s plea.

It acted in a way that appears to contradict the principles of “sobriety, moderation and reserve” — spelled out by themselves in 1963 in The State Of Uttar Pradesh vs Mohammad Naim — that have long governed judicial pronouncements across the country.

What followed within twenty four hours of the top court judgment were Home Minister Amit Shah's disparaging remarks against petitioner number two Teesta Setalvad, alleging that she had “exploited” Jafri, and shortly afterwards Setalvad was picked up the Gujarat crime branch from her home in Mumbai.

The FIR on the basis of which Seetalvad was detained, quotes heavily, amid a barrage of seeming conjectures, from the Supreme Court judgment in the Zakia Jafri case.

It also names former ADGP RB Sreekumar and ex-IPS officer Sanjiv Bhatt as co-accused, and has been registered under Sections 468, 471, 194, 211, 218, 120B of the IPC.

Setalvad and Sreekumar have since been remanded to Gujarat police custody till 1 July. Bhatt is already in jail in connection with a different case.

All this, even though the Supreme Court had not really issued notice against Setalvad and the other two, or even directly named them in its open-ended remarks about ulterior designs.

Jafri's Plea & The Court's Remarks

Jafri had filed a plea challenging a lower court order that had upheld the Special Investigation Team's report which gave a clean chit to Prime Minister (and former Gujarat CM) Narendra Modi and several others in the 2002 riots.

The bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar dismissed her plea, and also expressed "appreciation for the indefatigable work done by the team of SIT officials" and held that "failure of the State administration to maintain law and order cannot be linked to a suspicion of criminal conspiracy at the highest level."

Most controversially, however, they went on to suggest:

"At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation."

Further, the Court added:

"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."

"As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law," they went on to suggest.

This, despite the fact that:

• Audacity is not a punishable offence, at least not in a constitutional democracy.

• If a matter spills over 16 years, after being admitted by relevant courts of law on their own discretion, little blame can befall the petitioners. Legal process often pans decades and various stages of appeal, before arriving at a final conclusion. A question of law cannot be permanently settled overnight, and right to appeal is a statutory right.

• Even if there was an ulterior design (or a coalesced effort, as suggested by the court in a remark preceding the one quoted above), the top court did not make any specific findings of fact. In the absence of any specific findings of fact and an actual order on that basis, the court's judgment in the Zakia Jafri case cannot be used as a basis for action against activist Teesta Setalvad, former ADGP RB Sreekumar and ex IPS officer Sanjiv Bhatt.

The Consequence of Remarks Made by Courts

It is true that a court's observations, no-matter how vaguely worded they may be, carry great weight. In the absence of firm directions, even a whisper of an aspersion by a court of law, can be construed in a variety of ways that have far reaching consequences (both within and outside the legal framework).

This is perhaps why, in the Mohammad Naim case, the Supreme Court had expunged certain remarks against the entire police force made by a High Court judge in a case pertaining to only one police officer. The top court had thereby gone on to say:

"If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made.”

Further the Supreme Court noted that while making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant for the courts to consider:

• Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself

• Whether there is evidence on record bearing on that conduct justifying the remarks; and

• Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert (pass criticism) on that conduct. (emphasis added)

The Supreme Court went on say: “It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”

Speaking to The Quint, Colin Gonsalves, founder of the Human Rights Law Network (HRLN) and Senior Advocate at the Supreme Court pointed out:

“The (Zakia Jafri) judgment itself says that action should be taken against the people who raise doubts about the SIT. So in that sense the hounding of Teesta Setalvad is the direct result of the Supreme Court judgment. She deserves legal protection. But she has lost all that by this judgment.”

Meanwhile, speaking on the condition of anonymity, another senior advocate of the Supreme Court remarked:

“This judgement without notice to the likely affected, and without passing any orders, has yet drawn a target on Teesta Setalvad and the others."

The proceedings before the Supreme Court in the Zakia Jafri case did not offer any opportunity to Setalvad or any of the other people involved in bringing the case to defend themselves from any accusations of an 'ulterior design', nor have there been any proceedings against them where the SIT's claims were proved.

Moreover, there was no need for the court to make a pronouncement of this sort to uphold the SIT's findings and the magistrate court's decision to accept them.

Even if the court felt there was material that pointed in this direction, the accusations against Setalvad, Sreekumar, Bhatt and others were not at issue in this case, and instead the court has actually prejudiced any such future case against them with its comments.

A Widow's Grief & Agency

Zakia Jafri is presently an octogenarian and a widow. When her husband (then seventy-two year old Ehsan Jafri, a Congress MP) was killed in the Gujarat riots, she was already over sixty four years old.

Her pursuit for whatever she construes legal justice to be cannot logically be equated to a "a devious stratagem adopted" in a bid "to keep the pot boiling, obviously, for ulterior design."

Neither should any assistance offered to her by a civil-society member or an NGO. This, even if the learned judges of the Supreme Court are content with the SIT's submissions, and do not necessarily agree with what Jafri seeks.

There was perhaps room for the petition to be discarded, without far-reaching aspersions. Both because the aspersions seem to have somehow enabled the state to single out a select few, and also because they appear to reduce the grieving widow's own agency.

Was she so malleable that she fell pray to a nefarious design? Was her personal loss of such limited consequence to her own plea?

About Setalvad & Others...

Meanwhile, about Teesta Setalvad, Colin Gonsalves pointed out that she is India’s foremost, anti-communal activist, and she is a true freedom fighter of this new generation."

He also said:

“The hounding of Teesta Setalvad by the Central Government is the most deplorable development that has taken place in India."

Besides, as per the senior advocate who did not want to be named: “Even during the emergency, former Chief Justice of India AN Ray’s court did not imprison a citizen for helping anyone approach the Supreme Court."

UN Official, Civil Society Members Condemn State Action

Meanwhile, on Sunday, Mary Lawlor, the United Nations special rapporteur on the situation of human rights defenders, took to Twitter to condemn the detention of activist-journalist Teesta Setalvad.

“Teesta is a strong voice against hatred and discrimination. Defending human rights is not a crime. I call for her release and an end to persecution by Indian state.”

Mary Lawlor, the United Nations special rapporteur on the situation of human rights defenders

Condemning the “wrongful detention and prosecution” of Setalvad, Shreekumar and Bhatt, civil society members including PUCL General Secretary V Suresh and activist Medha Patkar, said:

“The state has now used the observations made in the judgment to falsely and vindictively prosecute those who had struggled for justice even in the face of state callousness and complicity. It is truly an Orwellian situation of the lie becoming the truth, when those who fought to establish the truth of what happened in the Gujarat genocide of 2002 are being targeted. (Sic)”