Tuesday, February 17, 2015

Hounding Of Teesta Setalvad: Attempts to arrest her and subject her to “custodial interrogation” are uncalled for - Written by Prashant Bhushan - The Times of India


Hounding Of Teesta Setalvad: Attempts to arrest her and subject her to “custodial interrogation” are uncalled for

February 18, 2015, 12:04 am IST

in TOI Edit Page | Edit Page, India | TOI
Prashant Bhushan 
  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.

DISCLAIMER : Views expressed above are the author's own. 
Readers' Comments:
Gussie Souza 9716
thank you mr. prashant bushan for letting the general know that judiciary in our country is not as 'independent' as the public is made to believe by 'patriots' who have ample money to bribe the police and other law enforcement agencies that operate under the constitution in the benighted country whose only redeeming feature is that the majority of the people are proud of their democratic constitution while practicing their informal communalism whether it is caste based or religion based and because of the sheer diversity of the country, the kind of theocratic state envisaged by some on the fringes of right wing political parties is a near impossibility without the redrawing of the geo-political map of the country! coming back to the gist of what mr. bushan has to say, and he is prominent supreme court lawyer, mind you, in india the independence of the judiciary and hence the rule of law itself is almost non existent at the level of the legal system. let me give you a personal example. i took my citizenship of this the country of my forebearers seriously and one fine day on the 8th of january 2012, i fired off an online complaint to the department of the pune municipal corporation that deals with granting permission for construction which i presume includes alteration to structures already in existence. i received an acknowledgement immediately.the complaint was about the illegal alteration of the structure (lowering of the plinth level) of a shop in the housing society where i had lived for almost 25 years and continue to do so. the work was brought to a halt and it made me happy that despite what pessimists say about the country, the officials did follow laws and rules from those laws. i did not know what i was in for at that time. in the mean time somewhere in february, the pune municipal corporation passed a resolution that declared a certain date in the end of march, 2012 would be the cut-off date for declaring illegal constructions and alterations would be 'legalised' . on the 7th of march when i left my flat to go to the local grocery, i was accosted by two constables, both english speaking , and dragged to a waiting richshaw and taken to the local police station which comes under the jurisdiction of the khondwa police station, pune. there i found that a policeman was already drawing up a fir under the instruction of the i assume was the new owner of the shop in question. i was taken to the sassoon hospital for a medical check-up and the doctor, a very young chap who may have passed his final exams just recently signed some papers written by the police. i refused to sign the papers and before the very eyes of the doctor , my left arm was held and my thumb impression was forcibly impressed on the police papers. i was then lodged in the faraskhana police station overnight till the illegal activity of the lowering of the plinth level was done overnight. 

(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.

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vnksk 6100
these anti-hindu elements promoted by toi wants the sickulars to have the right to eat away people's money at will and right to be corrupt. all their struggle against corruption is just a hoax.
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Kailash Vishnu 1028
this man prashant bhushan is shameless. using public media for his client's advocacy is unethical.
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Susheel Koul 1483
while mr bhushan is worried about government hounding teesta setlavad for what she has earned and deserved. he has no hesitation defending the right of self determination of islamic jihadis in kashmir. traitorrrrrrrrrrrrrrrrrr
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RV 6669
jhaank rahe hain apne dushman apni hi deewaron se, samhal ke rahanaa apne ghar me chhupe hue gaddaron se !!
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Anil Dharurkar 4010
this kind of newspaper articles must not publish while case is in supreme court .
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Anil Dharurkar 4010
instead giving details of funding you are blaming police. how sad bhushan she spends thousands of rs in beauty parlor and still looking horrible.
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Indian Bharatiya 661
if bjp president amit shah, who faced grievous murder charges in the sohrabuddin fake encounter case, could get the luxury of not having to appear before court, why were ms. setalvad and mr. anand being subjected to a “witch-hunt” over the alleged charges of financial corruption (of rs.4.6 lakh) !!!
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mahesh sharma 1379
shut up bhushan, if she can't be hounded, how do you even endorse her hounding modi for years? you are a double-speak and double-standard person.. disgusting pest.
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VA AV 1357
for prashant, anything which teesta says is the only truth and nothing but the truth; whereas anything which comes in defense of mr. modi is all misleading and fallacy. grow up prashant, we all know what these so called social workers and ngos are doing for the country. most of these bodies are involved in hawalas as they have tax benefits which they are using for their own cause. only a few ngos are there which are really working for the poor rest all are money making tools. for modi you always want him to be in jail and custodial interrogation done; but for his friends who have good amount of dust on their name and ways of their business (i see ngo as a business only), its unconstitutional or abuse of power.
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Ravi Ranjan Sinha 18951
what is so special about teesta?just because she has been spewig venonagains t mdi ad bjp she should be given a special treatment?if a common man can be taken into custoy for intrrogtion in a criminal case why should teesta be made an exception. activsits like bhushan should give up their arrogance which they have ben extending even to say that courts do not know laws and that judges are indulging in corrupt practices by attending some social engagements like marriages.
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Bipin B. 6454
the violation of constitution by the police is an attack on the people and their rights, the govt allows the violation of the fundamental rights of the people while proclaiming itself as the biggest democracy of the world. this lie and criminal nature of the colonial legacy must be eliminated. this also shows the dishonest of the govt and the judiciary.
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shivkumar mohite 10880
while in most other democratic countries, a person is considered innocent until proven guilty but here a person is guilty until proven innocent. we have police law here and no judicial law as the later takes aeons to decide upon a case. but with the police law sometimes you think you have justice as many of the hard core criminals spend some time in the jails at least.
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Prakash 3418
well mr. prashant bhushan, will you fight for the same cause for common people of this country, i mean the aam aadmi of this country ? i am sure you will not because it does not work that way. just because she is the one who fought to bring down the gujrat government and modi, you write a nice piece of article. it does not matter whether she has diverted the funds for her use by using the riot victims. also in your crusade against corruption etc., will you take up with the previous administration how and why the hrd ministry funded the trusts run the teesta?
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Ravi Ranjan Sinha 18951
good question.sir.
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Swapan Chakravarthy 278
well thought out article. the only disagreement is that accounting of trust funds have always been not auditable. the trail is often too weak and personalities such as seetalvad claim protection under law. nothing new in india. if modi is guilty of 2002, then hang him by all means but not by public conjecture. so mercy of seetalvad is only when she has submitted to public scrutiny.
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zubair 10387
there should be no arrest in general except in certain sections , custodial interrogation is useless as it stands no value in a court of law . it is just a tool being carried on from colonial past .
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mteverestpeak 2375
she mis-appropriated funds and her explanation is trustworthy - because she is well connected...omg...cannot believe you said...you are supposed to be for the aam aadmi. an aam aadmi would undergo the same treatment.what guj. police has done is the right thing/
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Rajan Kumar 587
ohh that's really sad. so why not now onward you fight for her in court. and if yo u don't believe court and it's legal procedures then leave your profession. this country is full of anti national gangs...
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Krishan Chand 7638
well setalvad has powerful persons in both legal and judicial fraternity and surely if she hasn't used the funds on self, the case will fail. the corruption and embezzlement can't be ignored just because she took on modi and fanned communal-ism in the bargain in the long nil outcome legal battles
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v1958m 8036
prashant, you aaptards have now tasted power. wait for a few months and you will taste vested interests funding activists against you. you talk after that.
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Srinivasan Janardanam 8040
in the world, there are few convicts who have admitted guilt. everyone is innocent, even if the highest court of the land convicts them - they were let down by 'circumstantial evidence' or perjury. this is what every convict claims, with a few exceptions. i am amused by prashant bhushan's strong defence of teesta, as also his strong argument that she should not be arrested and subjected to custodial interrogation. a judgment issued by the gujarat high court is lightly dismissed by him, and this article has not-so-veiled allegations of complicity by the judiciary with the executive. we will see what the supreme court says on 19 feb, but prima facie, the defence of teesta appears to be protesting too much. there are probably lakhs of undertrials across india in custody - police or judicial. they languish in jail for years, even decades, while their prosecution drags on. a significant number are acquitted, with no compensation. ministers in mamata's government, and mps, have been arrested by the cbi in the saradha scam case, without prashant bhushan lifting a little finger in their support. why is he protesting so vociferously for teesta? is it because he is also anti-modi, and she is also anti-modi? enemy's enemy is a friend? the article lacks objectivity.
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ashutosh 9176
one can not victimize a person but unlawful activities, and appropriate funds for it, and when law is playing catch up, cry foul, and play victim card... like aap is doing...
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