Teesta Setalvad’s Bail Application: Gujarat Government Faces Tough Questions

SG Tushar Mehta faced a volley of tough questions from the Bench. Tomorrow's hearing will decide whether Ms. Setalvad will secure bail.

At the end of hearings on September 1st 2022, Chief Justice U.U. Lalit and Justices S.R. Bhat and Sudhashu Dhulia appeared inclined to grant interim bail to activist Teesta Setalvad

Ms. Setlavad was arrested by the Gujarat Police on June 25th, 2022 for fabricating documents while accusing key players in the Gujarat State administration for their alleged involvement in the 2002 riots. She has been in custody ever since. 

The FIR for Ms. Setalvad’s arrest quotes Retd. Justice A.M. Khanwilkar’s Judgment in the Zakia Jafri (2022) case. Justice Khanwilkar, while rejecting Mrs. Jafri’s request for further investigation into the riots, stated that Ms. Setalvad ought to be prosecuted for ‘keeping the pot boiling’ by filing false documents in the riots cases. 

The Gujarat High Court issued notice to the Gujarat government in Ms. Setalvad’s bail plea. The HC granted the government six weeks to respond—an exceptionally long time, according to CJI Lalit, during which Ms. Setalvad would remain in jail. 

Senior Advocate Kapil Sibal, representing Ms. Setalvad,  argued that the FIR was without foundation, and that the Gujarat police had found no real evidence against Ms. Setalvad despite holding her in custody for over 2 months. 

Appearing for the Gujarat government, Solicitor General Tushar Mehta faced a volley of questions from the Bench. His arguments were strictly procedural—he stated that the Supreme Court should not hear this case while Ms. Setalvad’s bail application was pending at the Gujarat HC. Tomorrow (September 2nd) Mr. Mehta will have a final opportunity to convince the Court not to grant bail. 

Kapil Sibal: No Evidence Against Ms. Setalvad

Mr. Sibal argued that, for the crime of ‘perjury, the Court must initiate a complaint under Sections 195 and 340 of the Code of Criminal Procedure (1973) before arrests can be made. He emphasised  that the Gujarat police arrested Ms. Setalvad the day after Justice Khanwilkar delivered the Zakia Jafri Judgment, presumably giving the police little time to conduct an independent investigation to justify the arrest. 

Finally, Mr. Sibal argued that Ms. Setalvad had not filed any documents herself in the case before the Supreme Court. All documents were handled by the Court appointed Special Investigation Team. There are no grounds for perjury or fabricating evidence. 

SG Mehta Implores Court to Treat Setalvad Like All Other Citizens

SG Mehta, relying on a past 5-Judge Bench decision of the SC, argued that the Court should use its Article 136 power to hear appeals from HCs judiciously. He argued that High Courts should have the final word in bail applications. In this case especially, he argued that the High Court proceedings were still pending. He stated that the Court should not give Ms. Setalvad special treatment—any other citizen would not be given a hearing at the SC in similar circumstances. 

Holding Mr. Mehta to account for his disdain of Ms. Setalvad’s special treatment, CJI Lalit asked Mr. Mehta to cite other instances in which the Gujarat High Court had allowed the government six weeks to respond to a bail application for a female undertrial. CJI Lalit reminded Mr. Mehta that the CrPC requires Courts to take a liberal view while considering a woman’s bail application. Mr. Mehta will return tomorrow, with the Court waiting expectantly for examples. 

Bench Enquires About ‘Tone and Tenor’ of Case Against Ms. Setalvad

The Bench expressed some concerns with Ms. Setalvad’s arrest in addition to the six week notice period. Mr. Mehta must address these concerns as well tomorrow to make his case. 

First, if the charges against Ms. Setalvad were credible, the Bench pondered why no chargesheet had been filed against her even after two months in custody. Second, the Bench expressed concern that the FIR against her parroted the Supreme Court Judgment, suggesting no independent investigation by the police. Third, CJI Lalit pointed  out the nature of offences Ms. Setalvad was accused of were not ‘serious’ like murder or causing bodily harm. Interim bail is not barred in the offences of perjury and forgery. 

The Bench asked Mr. Mehta to inform them of the ‘tone and tenor’ of the investigation currently underway in Gujarat. Tomorrow’s hearing will decide whether Ms. Setalvad will remain in jail, or secure release through interim bail.