EDITORIAL PAGE MAIN ARTICLE IN PRINT ISSUE
Prashant Bhushan in TOI Edit Page | Edit Page, India | TOI
Prashant Bhushan The writer is a Supreme Court advocate and member of AAP's National Executive.
Hounding Of Teesta Setalvad: Attempts to arrest her and subject her to “custodial interrogation” are uncalled for
February 18, 2015, 12:04 am ISTPrashant Bhushan in TOI Edit Page | Edit Page, India | TOI
Prashant Bhushan The writer is a Supreme Court advocate and member of AAP's National Executive.
The case of Teesta
Setalvad is a chilling example of what can still happen to even highly
acclaimed and well connected persons in this country if they take on
those in authority, and especially if the person you have taken on
becomes the most powerful person in the country. It is also a sad
commentary on how a supposedly independent judiciary does sometimes
appear to get influenced by executive authority.
For the last 13 years Teesta has fought a valiant and sometimes lonely battle to bring the perpetrators of the 2002 Gujarat carnage to justice. In this battle, she produced considerable evidence to demonstrate the role of Narendra Modi in abetting the carnage, and kept raising her courageous voice against him.
In retaliation, the Gujarat police registered several cases against her and repeatedly tried to arrest her. But in earlier cases the courts came to her rescue and stayed her arrest and investigations against her.
But now, in a complaint of misappropriation of trust funds filed by a purported resident of Gulbarga society (not by any member or donor of the trust), a single judge of the Gujarat high court has not only dismissed her application for anticipatory bail, but has also urged the police to arrest her and subject her to “custodial interrogation”.
The court has also made sweeping and prejudicial allegations against her by relying only on allegations of the Gujarat police and completely ignoring explanations provided by Teesta.
Personal expenses incurred from her personal account are taken to amount to misappropriation of trust funds, merely because some reimbursements of trust expenses incurred from her personal account for the trust were made to her.
The judge says that she must not be granted anticipatory bail because she must undergo “custodial interrogation”, which everyone knows is a euphemism for torture.
In India, as in most civilised countries, the right to silence is a constitutional right of everyone accused of a crime. Though Teesta had answered every question put to her by the police, they cannot compel any accused person to answer questions.
They can draw an adverse inference, but cannot compel answers by “custodial interrogation”. Unfortunately, however, courts in India have not understood this simple constitutional principle and still continue with the antiquated practice of rendering accused persons to police custody and thus to police torture.
Another unconstitutional and illegal practice of the police, which unfortunately is also being sanctioned by courts, is allowing the arrest of accused persons merely because there is an allegation against them. The police think that merely an FIR against a person gives them the licence to arrest him.
This has become an easy weapon in the hands of the police to terrorise and torture innocent persons, who might be falsely accused of offences.
Unfortunately the lower courts have been sanctioning this practice too, despite clear judgments of the Supreme Court to the effect that the mere fact that the police have the power to arrest does not mean that they can exercise that power just because there is a charge.
The apex court has said, “No arrest can be made merely because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.”
Arrest during investigation is justified only if the accused if not arrested may flee from justice, or he might tamper with evidence, or he has committed a heinous offence and arresting him is essential for instilling a sense of security among the community, or he is a habitual and violent offender and is likely to repeat such offences unless arrested.
None of these factors are normally present in most cases, especially not in the one against Teesta. Yet the police habitually resort to arresting anyone accused, particularly if they have a motive to do so or if the powers-that-be want it.
Despite the Constitution makers having gone to great lengths to protect independence of the judiciary, and the judiciary having withdrawn even the power to appoint judges to itself, we are witnessing the continuing influence of the executive over the judiciary.
This influence is exercised in multiple ways, which include post-retirement jobs, sanctioning of foreign trips, medical treatment in foreign countries and so on.
More distressingly, however, we are also seeing increasing social consanguinity between politicians and judges. Gone are the days when judges kept aloof from politicians.
We now have the common spectacle of ministers and sundry politicians attending weddings of judges’ children and vice versa. If the judiciary also allows itself to get influenced by a powerful and fascist executive, our rights and liberties are truly in dire straits.
For the last 13 years Teesta has fought a valiant and sometimes lonely battle to bring the perpetrators of the 2002 Gujarat carnage to justice. In this battle, she produced considerable evidence to demonstrate the role of Narendra Modi in abetting the carnage, and kept raising her courageous voice against him.
In retaliation, the Gujarat police registered several cases against her and repeatedly tried to arrest her. But in earlier cases the courts came to her rescue and stayed her arrest and investigations against her.
But now, in a complaint of misappropriation of trust funds filed by a purported resident of Gulbarga society (not by any member or donor of the trust), a single judge of the Gujarat high court has not only dismissed her application for anticipatory bail, but has also urged the police to arrest her and subject her to “custodial interrogation”.
The court has also made sweeping and prejudicial allegations against her by relying only on allegations of the Gujarat police and completely ignoring explanations provided by Teesta.
Personal expenses incurred from her personal account are taken to amount to misappropriation of trust funds, merely because some reimbursements of trust expenses incurred from her personal account for the trust were made to her.
The judge says that she must not be granted anticipatory bail because she must undergo “custodial interrogation”, which everyone knows is a euphemism for torture.
In India, as in most civilised countries, the right to silence is a constitutional right of everyone accused of a crime. Though Teesta had answered every question put to her by the police, they cannot compel any accused person to answer questions.
They can draw an adverse inference, but cannot compel answers by “custodial interrogation”. Unfortunately, however, courts in India have not understood this simple constitutional principle and still continue with the antiquated practice of rendering accused persons to police custody and thus to police torture.
Another unconstitutional and illegal practice of the police, which unfortunately is also being sanctioned by courts, is allowing the arrest of accused persons merely because there is an allegation against them. The police think that merely an FIR against a person gives them the licence to arrest him.
This has become an easy weapon in the hands of the police to terrorise and torture innocent persons, who might be falsely accused of offences.
Unfortunately the lower courts have been sanctioning this practice too, despite clear judgments of the Supreme Court to the effect that the mere fact that the police have the power to arrest does not mean that they can exercise that power just because there is a charge.
The apex court has said, “No arrest can be made merely because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.”
Arrest during investigation is justified only if the accused if not arrested may flee from justice, or he might tamper with evidence, or he has committed a heinous offence and arresting him is essential for instilling a sense of security among the community, or he is a habitual and violent offender and is likely to repeat such offences unless arrested.
None of these factors are normally present in most cases, especially not in the one against Teesta. Yet the police habitually resort to arresting anyone accused, particularly if they have a motive to do so or if the powers-that-be want it.
Despite the Constitution makers having gone to great lengths to protect independence of the judiciary, and the judiciary having withdrawn even the power to appoint judges to itself, we are witnessing the continuing influence of the executive over the judiciary.
This influence is exercised in multiple ways, which include post-retirement jobs, sanctioning of foreign trips, medical treatment in foreign countries and so on.
More distressingly, however, we are also seeing increasing social consanguinity between politicians and judges. Gone are the days when judges kept aloof from politicians.
We now have the common spectacle of ministers and sundry politicians attending weddings of judges’ children and vice versa. If the judiciary also allows itself to get influenced by a powerful and fascist executive, our rights and liberties are truly in dire straits.
DISCLAIMER : Views expressed above are the author's own.
-----
Readers' Comments:
.
(continued......when i came home after my brother had stood bail for me, i found my flat locked. on enquiring, i was told that my flat was locked by the treasurer of my housing society and the police constable. the treasurer unlocked the door and to my surprise i found that a lenovo laptop that i had purchased from a second hand computer dealer just a couple of days earlier was missing although my older laptop (toshiba) was left in place. the treasurer is still 'serving' the society in the same capacity and if he is subjected to police interrogation i am sure that the whereabouts of my laptop will be known even after these three years have elapsed. i found that i was charged under u/s 85 of the bombay prohibition act vide section 251 (2) of the criminal procedure code. i live on the benefaction of my brother and therefore could not hire a thoroughly independent lawyer and had to depend on a cheap lawyer and on 22 january, was found guilty. i refused to accept the judgement because neither of the two policemen who testified in court and the doctor from the sassoon hospital were the originals who had actually taken part in my arrest. also the prosecution totally failed to produce any witnesses. and the magistrate quite conveniently attributed the absence of witnesses, what can be construed by the layman, to the 'understandable' reason that witnesses find it embarrassing etc.today the shop in question has become two shops. another shop owner took the opportunity of the usual turmoil of electioneering in may of 2014 (lok sabha elections) and has also illegally converted his shop which is right adjacent to the office of a ncp corporator. it is mentioned in mr prashant bushan's article that the police arrest merely because there is an allegation against the person arrested. the fact is that the police are susceptible to bullying , bribery and the power of the rich. i was then 64 years of age and today at the age of 67 i face the prospect of going to prison. i do not mind . but i request the the police commissioner , the head of the khondwa police station to atleast return my lenovo laptop because the accessory to the theft is still the treasurer of my housing society on nibm road, khondwa, pune. if this letter is printed, as i wish it would, i am sure the cops will find a friendly magistrate to cancell my bail which would be all to the good because i cannot afford a private doctor and do not have the energy to go to a public hospitals for removal of kidney stones and do something about my expanded bladder. this is the country we are living in. i am told often that i deserve to suffer for being too moralistic. this by my own family and neighbours. the present managing committee consists of person who are all guilty of similar crimes who were bailed out by the regular regularisation of such illegallities. i think our sense of morality is too circumcised because we are too diverse, linguistically, culturally and are caste-ridden.