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Full Text | 'SC Has Made It Difficult for Teesta Setalvad to Get Bail': Justice Madan Lokur

In an interview with Karan Thapar, the retired judge said the top court's order rejecting Zakia Jafri's petition could mean that if a litigant comes to court and does not succeed, that litigant is in trouble.

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On June 28, 2022 Karan Thapar interviewed Justice Madan Lokur, a former judge of the Supreme Court, for The Wire. In the 29-minute chat, the former apex court judge discussed why the Supreme Court should issue a clarification on the arrest of Teesta Setalvad, the human rights activist whose NGO, Citizens for Justice and Peace (CJP), provided legal assistance to the victims of the 2002 Godhra riots. He said if the top court judges intended that Setalvad should be arrested, then “heaven help us”.

This is the full transcript of the video interview. It has been edited lightly for syntax and style.

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Has the Supreme Court made a terrible mistake in its Teesta Setalvad judgment. Has it converted the complainants into accused? And, has it forgotten what it said in 2004 about Narendra Modi and the government he ran in Gujarat at the time? Those are three of the many questions I’ll put today to one of the most illustrious former judges of the Supreme Court – Justice Madan Lokur.

I want to talk to you primarily about the Supreme Court’s Teesta Setalvad judgment. After accusing the complainants of false claims and an attempt to create sensation, the judgment says, and I’m quoting, “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.”

As a former judge of that same court, how do you view this critical sentence?

I think it is very very unfortunate, you know. There’s no need to say all this when you’re dismissing a case. In this particular case, the appeal filed by Zakia [Jafri] was being dismissed. All right. It’s being dismissed. But why is it necessary to say that we are dismissing the case and we want you to be prosecuted because you have come out with a false case, when there are thousands and thousands of false cases that are filed. And, are the courts going to prosecute everybody in all those cases?

What about false cases filed by the police? Is the court going to prosecute the police for filing false cases? So I think it was totally unnecessary and very very unfortunate.

In a piece that you wrote for The Wire that was published earlier this afternoon [June 28], you said that if the Supreme Court intended that Teesta Setalvad should be arrested, your words were, “heaven help us.” It’s as bad as that, is it?

It’s as bad as that. Yes yes. Because, then if a litigant comes to court and does not succeed, that litigant is in trouble. So, I think we have to be very careful.

In other words, if a litigant comes down to court and doesn’t succeed in the court, then decides that the litigant should be prosecuted. Heaven help us.

Yes yes, certainly.

You said something else as well. If the court did not intend that Teesta Setalvad should be arrested, they should issue a clarification. And, you added that they should order direct unconditional release. Three days have passed since she was arrested, but there hasn’t been a word from the court. What do you make of that total silence?

I really don’t know where the learned judges are, whether they’re in Delhi or elsewhere, because this is vacation time. But surely, they could have instructed the secretary general of the Supreme Court to issue a statement or a clarification saying that ‘listen, it was not our intention that Teesta be arrested and taken away to Ahmedabad.’

I think they could have done that, and if they’re in Delhi, I think they should have a special sitting and issue a clarification.

And if they haven’t done that, what would be your response?

Well, I would feel extremely sad, extremely disappointed. What else can one do!

Disillusioned, as well?

Disillusioned, yes, to an extent, yes, certainly.

So today we have a position where one of the most illustrious former judges of the Supreme Court is actually disillusioned, with what I might call your alma mater.

Yes, and well you know, it’s not just this judgment but things have been happening in the past. It has culminated in a sense in this judgment but there have been instances in the past where the Supreme Court should have acted but did not. In this particular case, it should not have acted, but it did. So, I don’t know what’s going on.

In other words, there are multiple instances where the Supreme Court should have acted but it did not, or cases like where it should not have acted but it did. This means there are multiple reasons why you’re disillusioned. This is not the only thing.

Yes, this is not the only thing. There are so many cases that are pending – Habeas Corpus, electoral bonds, and so on. Why are they not being heard? In Habeas Corpus cases, people are in jail. They are in custody. So surely they should be given priority.

Also read: ‘Shocking’: Nobel Laureate Maria Ressa on Arrest of Teesta Setalvad, Mohammed Zubair

You’ve written about many of these things, spoken to me about several of them. Your voice has been heard loud and clear. Has anyone from the Supreme Court ever got back and explained quietly, privately, what their position is? Or is there total silence from them?

No, nobody has got back to me. I don’t know whether they’ve got back to anybody else. But, they’ve certainly not got back to me.

Let’s then at this point, Justice Lokur, look at some of the implications of what I call the Teesta Setalvad judgment. First of all, it converts all the complainants into the accused. And in turn, that seems to suggest that Indians don’t have a right to challenge government actions or to question the investigations of a special investigation team. That’s a disturbing ramification and implication, isn’t it?

It is. There are certain instances where the special investigation team has been appointed in criminal matters. In civil cases, committees are appointed. What the committee or the special investigation team says is to be taken as something cast in stone. Then why do we have courts? You just say the matter is being referred to the SIT, or a committee of retired judges, experts, depending on the nature of the cases. That’s it. End of the matter.

But you’re saying something more important hidden behind that answer. If judges won’t allow you to question the conclusions of the special investigation team, then the judges are not doing their job properly either. Because questions will arise and those questions must be asked and answered. And worst, if people are punished for asking them, then the judges aren’t doing their job.

Yes, you could put it that way. Whatever the decision is taken, whether it’s taken by an SIT or a committee, the decision is not necessarily correct. It can’t always be correct. So a litigant or a person aggrieved has an opportunity to question that report.

The Supreme Court itself has said that ‘we are supreme but that doesn’t mean that we’re infallible.’ So then how can it be said that an SIT or a committee or a Commission is infallible. That’s absolutely wrong.

The judgment also refers to what it calls, and again I’m quoting the judgment, “the audacity to question the integrity of every functionary involved in the process.” That very language suggests that ordinary citizens like you and me don’t have the right to question the behaviour of government functionaries because it’s considered audacious to do so.

Yes, I think the language is unfortunate, harsh. It should not be [like that]. Particularly, in criminal cases, the language should never be harsh. Because the litigant has suffered. In this particular case, you can imagine what Zakia has gone through, and then to say that she has the audacity to say that the SIT is wrong, I think it’s totally uncalled for.

Zakia Jafri. Credit: PTI

Zakia Jafri. Photo: PTI/Files

But beyond the harshness of the language, there’s a sense of prejudice behind the language. You only say “its audacity to question an SIT,” if you firmly believe the SIT, as you said, is “infallible,” indicating a prejudice clearly in its favour and against the litigant. This is prejudicial use of language, not just harsh language.

Well, okay, I am prepared to give the benefit of doubt to the judges. And what you see may also have led to the fact that the Supreme Court has said that “put them in the dock.” [It] could be.

Let me go one step further. The judgment says, and again I’m quoting from the judgment, “Inaction or failure of some officials of one section of the state administration cannot be the basis to infer a pre-planned conspiracy by the authorities of the state government, or to term it as a state-sponsored crime against the minority community. But doesn’t that statement overlook the fact that inaction or failure  by one section of officials could be a response to direction and command from the top and not incompetence or ineptness. They can be told to deliberately fail which they often are with a nudge and a wink.

It’s possible. I don’t know whether this argument was already placed before the Supreme Court when the matter was being argued. But yes, you’re right. Instructions can be given to people, to the bureaucrats, to the police, that do that or don’t do that. That’s possible. But whether this was actually placed before the Supreme Court as an argument, I don’t know. The judgment doesn’t seem to give any indication.

It just seems to suggest that one section did not do their job when they should have done their job. But for that you cannot blame the entire administration.

What do you make of the fact that the FIR [first information report] against Teesta Setalvad is from January 1, 2002 up to June 15, 2022? In other words, it even predates the Godhra killings and it covers a span of over 20 years.

Is it June 15 or June 25?

I think The Indian Express reported it as June 15. It may well be June 25.

If it’s June 15, it makes a lot of difference. Because it is an indication that the police had already made up their mind that they are going to prosecute her for something that she has done up to June 15 – which also could mean they had an inkling of what’s going to happen in the Supreme Court. So I think the date of June 15 or June 25 is of some importance. But that apart, to have the [FIR covering] a span of 20 years, I think this is obviously vindictive.

The Supreme Court did not say, or did not even hint or suggest, that listen, you go back into her history and find out what has happened. That, plus the fact that the FIR has mentioned in some place that they’re going to look into how she received funds and what she did with those funds. That’s obviously something which is motivated.

Justice Lokur, there’s something in the answer that you said in the first half that’s particularly disturbing. If it is the case, and I underline that word ‘if’, because I know you weren’t saying if it’s the case; but if it is the case that somehow the police had an inkling of what was going to happen in the judgment and perhaps already decided to prosecute her for something that had happened before June 15, that would be very disturbing.

That some other police had been informed in advance of the judgment would be a betrayal of all the standards you expect of Supreme Court judges.

Yes, not informed but I mean, they could have or their lawyers could have made an intelligent guess, informed them that this is what is likely to happen, so you better be prepared, because she has to be fixed.

Also read: Teesta, Others ‘Persecuted for Activism’: UN Human Rights Office; Misleading Says MEA

But if lawyers make an intelligent guess, they would do it on the basis of what judges have been saying, on the basis of comments judges have been making, on the basis of suggestions judges have been putting to them. And once again, that sequence of events is disturbing, because one would hope that a case is never conducted in such a way that the police end up getting tipped off in advance of what the outcome could be.

Yes, you’re right. You see, sometimes when lawyers argue a case, and depending on the line of questions that are being asked, the lawyers can figure out which way the judges are going. It’s not difficult. So in this particular case, it is possible that the lawyers figured out that they’re going to succeed, and that the report of the SIT is going to be upheld. And, so they probably advised the police that this is what is going to happen.

Well, the police would have taken a decision that if this is what is going to happen, then this is what we are going to do. That perhaps could have been the sequence of events. I don’t know. It’s just guesswork…

…All of which is even more disturbing for the audience to listen to. At this point, let me quote some of the comments about this judgment. The Oxford scholar Gautam Bhatia has tweeted, and I’m quoting him, “Indian Supreme Court’s contribution to global jurisprudence is to decide an individual versus state case by telling the state to arrest the individual. A remarkable constitutional innovation.” As a former Supreme Court judge, how do you respond to Gautam Bhatia’s comments?

I don’t think any constitutional court says that you arrest a particular person. That’s the job of the police. Whether they want to arrest or not want to arrest. If they decide to arrest the person, they can come to court and the court can decide whether bail should be granted or not. But I have not come across a situation where the court says you know, you arrest this person, unless that person has committed contempt of court or something, in which case, the court says we’re sentencing you to a day’s or a month’s imprisonment. In such an event, the police have to arrest the person.

Mumbai: Activist Teesta Setalvad at Santacruz police station after being detained by Gujarat police, in Mumbai, Saturday, June 25, 2022. Photo: PTI

In this specific instance, the court has actually said that people who they claim have abused the process “need to be in the dock and proceeded with in accordance with law.” In other words, that is a somewhat elaborate way of saying, ‘arrest them, prosecute them, and bring them to us.’

Yes, that’s what I have written about. Did the Supreme Court intend the arrest? Did the Supreme Court suggest the arrest? Either way, if the Supreme Court intended it or suggested it, it’s wrong. I’ve no doubt about it.

And you also said at the beginning of this interview that if they did not intend this arrest, they should direct unconditional release. You said they could have instructed the secretary general of the Supreme Court to issue a statement clarifying [their statement on Setalvad’s arrest], and you were disappointed and disillusioned because that has not happened. 

Right. Right. Right.

Let me quote Amnesty International. It is one of the most highly regarded NGOs that defends human rights and human liberties. This is what they have said: “Detention of prominent human rights activist Teesta Setalvad by the Indian authorities is a direct reprisal against those who dare to question their human rights record. It sends a chilling message to civil society and further shrinks the space for dissent in the country.” It’s a terrible thing for anyone to say for any democracy.

Absolutely correct. It’s extremely unfortunate. And that’s why the Supreme Court should say something – one way or the other. No we did not intend it or yes we did intend it, and yes it happened, so what.

With every successive day of silence – and we’ve had three days of silence, we’re into the fourth [June 28] – does it get more damning for the Supreme Court?

Yes, it does. There are already so many voices that are critical of the judgment, something needs to be done about it. And the longer this silence remains, things are not going to improve.

supreme court

Supreme Court of India. Photo: PTI

That’s a very important point to say: The longer the silence remains, things won’t improve. Let’s be honest, sir, they’ll get worse. She’ll remain in jail. God knows how she’ll be treated by the police. For her, things will not improve, they’ll get worse.

One more thing, in view of the observations of the Supreme Court, it’s going to be very difficult for a judge to grant her bail. They’ll say, ‘well the Supreme Court said it, we can’t grant bail in a situation like this.’ That’s going to be very difficult for her.

In other words, unless the Supreme Court steps in and reverses what it said and issues the statement you believe they should, Teesta Setalvad could face the prospect of being in jail, being refused bail for a very very long time.

Yes, it could happen, certainly.

In other words, she faces grave injustice. And, I’m saying that deliberately, ‘grave injustice’.

Yes, you’re right. Put yourself in the shoes of a magistrate. The prosecution will come before the magistrate and say, ‘listen, this is what the Supreme Court has said, are you going to release her on bail?’ The magistrate will say, ‘forget it, if the Supreme Court thinks, or suggests or intends, that she should remain in jail, let her remain in jail. I’m not going to grant her bail.’

And when she goes to the high court, perhaps the same thing might happen there. That’s why I think she’s in for a long haul.

Let me at this point remind you of what the Supreme Court said about Narendra Modi and his Gujarat government in April 2004. Today, the Teesta Setalvad judgment makes it clear that the same court is dismissive and critical of questions that are raised against Narendra Modi and his government of the time. But in the judgment of April 12, 2004, Justices Doraiswamy Raju and Arijit Pasayat called the government, and I’m quoting, “Modern-day Nero is looking somewhere when Best Bakery and innocent children and helpless women were burnt.” And then it added, “They were probably deliberating how the perpetrators of the crime can be saved or protected.”

Four months later, the same Supreme Court reopened over 2,100 out of 4,600 cases and transferred each of them out of Gujarat because they didn’t believe justice could be done in Modi’s Gujarat.

I admit that was 18 years ago, but has the Supreme Court forgotten the strong words it spoke. Those words were in a written judgment, sir. Has it forgotten the strong action it took?

In 2022 it seems they’ve forgotten about 2004.

Yeah, you see, it’s like this. I think some of those comments were a little over the top. Okay, But transferring a case out of the state of Gujarat or transferring 2,000 cases out of the state of Gujarat is a very telling act. Now, if that’s the position, the Supreme Court should have kept that in the back of its mind that things were not as they should be. And, therefore, it’s possible that some of the things which are pointed out by the amicus curiae in the judgment (in the annexure) should have been taken a little more seriously by the Supreme Court.

After all, the amicus curiae had no axe to grind. The SIT had a job to do. They did it. But certainly not the amicus curiae. So the Supreme Court should have kept all of this on the back of its mind while deciding the case. Unfortunately, it did not.

Also read: The Supreme Court Has Made Progress. It Now Directs ‘Those Seeking Justice’ to Be Put in the Dock

This leads me to the question, and I suppose this is an obvious question, normally we in India look to the courts, and we particularly look to the Supreme Court, to stand up for the rights of individuals against the might of the state.  Here it seems, the court is using the might of the state to crush the rights of an individual because it disapproves of that individual’s complaints. Is this a black day for the Supreme Court?

It is, well, black, you could say. But certainly, grey, a darker shade of grey. But it’s wrong, whichever way you look at it, I think the Supreme Court should not have gone to this extent.

It’s interesting you didn’t root out the possibility that it’s a black day.

I didn’t rule it out. Well, something worse can happen, One doesn’t know.

Just as there are darker shades of grey, there are darker shades of black. What do you make of the fact, Justice Lokur, that none of the three judges on this bench signed the judgment. I know that happened in the Ayodhya case too. But it has happened again.

No, I’m not aware of this. Are their names in the judgment?

But it was reported in the press, and I’m quoting the press, that none of the judges signed the judgment. It’s possible that the press reports are inaccurate, but I’m relying on press reports of yesterday’s [June 27] papers.

Yeah, well, the names of the three judges are there in the judgment, so they must have signed it.

But the names of the judges were also in the Ayodhya case, but they didn’t sign it. Even the author of the judgment in that case is not known, although we all have guessed who it is. Could it not be the same as happened here? We know who the judges are because they sat on the benches. We saw them, they were identified. But if the papers are correct, and as they reported yesterday, they didn’t sign it. If that’s the case, what do you make of it?

If that’s the case, then I’m stunned. That’s all I can say.

Finally, you’ve been a very proud member of the Indian Supreme Court, and rightfully and justifiably so, how would you describe your response to what the Supreme Court said. I know I have asked you that question earlier. Has the Supreme Court diminished itself and let down its admirers?

Oh yes, it certainly has. I don’t think any person would have expected this from the Supreme Court. Any person versed in the law would not have expected this from the Supreme Court. Particularly, that paragraph you quoted about these people being put in the dock. It’s very very unexpected.

Justice Lokur, thank you for your openness and bluntness, and for telling me so forcefully that the Supreme Court should issue instructions to the secretary general that they did not intend for Teesta to be arrested. A clarification is essential, you said. And if it doesn’t come, then with every day of silence, the silence becomes more damning. And, of course, the situation for this becomes more unbearable and horrible.

Thank you for this interview. Take care, Justice. Stay safe.

Thank you.