Madan B. Lokur

Did the Supreme Court intend or suggest that Teesta Setalvad should be arrested? Whatever your answer, the implications are horrendous. The reference is, of course, to the recent judgment in the appeal filed by Zakia Ahsan Jafri.

If your answer to the question is ‘yes,’ don’t you think it is tragic that the Supreme Court has taken upon itself to unilaterally decide who should be arrested and why? That is certainly not the jurisdiction of the Supreme Court, as we know it, except in the case of contempt of court. And, even in a case of contempt, the Supreme Court hears the alleged contemnor before judgment and arrest. Frankly, I do not think the Supreme Court intended that Teesta should be arrested for whatever her role in respect of the grievances of Zakia Jafri.

Did the Supreme Court suggest Teesta’s arrest?

If so, then the learned judges suggested the arrest of a person who was not really recognised as a party to the proceedings and who was not heard and whose liberty was taken away unilaterally and arbitrarily. Surely, the Supreme Court could not have suggested that a stranger to the proceedings before it – and I will explain below how a co-petitioner was turned by the court into a stranger – should be arrested for whatever reason.

However, if I am wrong in my assessment and the Supreme Court did intend or suggest Teesta’s arrest, heaven help us, please.

But, if I am not wrong, may I earnestly appeal to the learned judges to immediately issue a clarification that it was neither their suggestion nor their intention that Teesta be arrested? The learned judges should also direct the unconditional release of Teesta with immediate effect and quash her arrest and continued detention.

If the learned judges remain silent, the inference is obvious and my appeal to heaven is justified.

If your answer to my question is ‘no,’ then please explain or get someone to explain what prompted the Anti-Terrorism Squad to drive or fly down to Mumbai to arrest Teesta? The obvious answer is that the Anti-Terrorism Squad acted upon a First Information Report (FIR) reportedly filed by the Ahmedabad Detection of Crime Branch through Inspector Darshansinh Barad.


The basis of this FIR

What is the information on the basis of which the FIR was lodged? Reports in the public domain indicate that it was filed by referring to and heavily relying upon a few passages from the judgment of the Supreme Court and some critical observations.

What is the offence committed by Teesta? Again as reported, the broad offence is allegedly conspiring to falsely implicate innocent persons. The police in some other states have implicated persons presumed innocent (until found guilty) and even killed some of them in fake encounters. So what’s the big deal now?

The sections of the Indian Penal Code (IPC) under which the FIR has been lodged relate to forgery, using as genuine a forged document or electronic record, giving or fabricating false evidence with intent to procure conviction of a capital offence, and a couple of other similar sections, including criminal conspiracy.

None of these are “terrorist” offences, so why was the Anti-Terrorism Squad sent to arrest her? Full marks if you can answer this.

As the FIR suggests, observations of the Supreme Court were good enough reason for the Ahmedabad Detection of Crime Branch and the Anti-Terrorism Squad to arrest Teesta and pray to the concerned judicial officer in Gujarat to remand her to 14 days’ police custody. A prayer for 14 days of police remand is always unusual and more so in this particular case.

Does this say something? Anyway, what are these observations?

Interestingly, there is no such direct observation of the Supreme Court, only innuendos and submissions of the lawyers for the Special Investigation Team and the state of Gujarat.

Judgment of the Supreme Court

The judgment of the Supreme Court is divided into 6 parts. Part 1 consists of three paragraphs that are in the nature of an introduction dealing with a request for condoning the delay in Zakia Jafri filing the appeal. The respondents (the Special Investigation Team or SIT and the state of Gujarat) “had faintly objected to the hearing of this matter on merits owing to unexplained delay in filing of the petition.”. The Supreme Court decided to ignore or condone the delay in filing the appeal and decide the appeal on its merits.

However, these respondents had a serious objection to Teesta Setalvad joining the proceedings as a petitioner. Two reasons were proffered: firstly, the protest petition before the Ahmedabad magistrate was filed on April 15, 2013, only by Zakia Ahsan Jafri. Teesta was not a signatory to the protest petition. On December 26, 2013, the protest petition was rejected by the magistrate.

Teesta came into the picture in 2014 when Zakia Jafri and she filed a petition in the Gujarat high court challenging the order of the magistrate. (Teesta would have been with Zakia in the background before that). In a decision delivered by the high court on October 5, 2017 it was held that Teesta had no locus standii in the matter and that decision had become final. Ergo, Teesta had no locus in the appeal filed by Zakia in the Supreme Court.

Secondly, the respondents contended that “the antecedents of Ms. Teesta Setalvad need to be reckoned and also because she has been vindictively persecuting this lis for her ulterior design by exploiting the emotions and sentiments of appellant – Zakia Ahsan Jafri, the real victim of the circumstances.”

The Supreme Court did not attach any importance to these objections and the question of Teesta’s locus to file an appeal was left open in the following words in paragraphs 2 and 3 of the judgment:

“…[W]e do not wish to dilate on the issue of locus of Ms. Teesta Setalvad and keep that preliminary objection open to be decided in an appropriate case.

In that light, we have granted leave to appeal and decided to examine the matter on merits at the instance of the appellant – Zakia Ahsan Jafri.”

Therefore, the Supreme Court rejected or ignored the first two preliminary objections raised by the SIT and the state of Gujarat. The learned judges proceeded to hear the appeal on merits but did not recognise Teesta as a party to the proceedings. In its judgment, the Supreme Court repeatedly referred only to Zakia Ahsan Jafri as the appellant. Teesta was completely ignored.

And yet she has been indirectly condemned and arrested.

The second part of the judgment is titled ‘Preface’ and it consists of only paragraph 4 which gives a sort of birds-eye view of how and why the appeal came up for consideration before the Supreme Court. This is purely factual.

The third part of the judgment titled ‘Facts’ also consists only of paragraph 5 but it is divided into 28 sub-paragraphs. This section of the judgment details the facts of the case without any comment or observation about Teesta, except that in some earlier proceedings it came to be known that she had addressed two letters to the Chairman of the SIT with an endorsement to the Office of High Commissioner for Human Rights Council, Geneva. She was asked for an explanation (in the earlier proceedings) and she gave an assurance to the Supreme Court that she would not repeat her error. On this, the Supreme Court had closed the issue.  

The fourth part of the judgment consists of three segments: the submissions of Zakia Jafri in paragraph 6 consisting of multiple sub-paragraphs (a) to (www); the submissions of the SIT in paragraph 7 (a) to 7 (llll) and the submissions of the State of Gujarat in paragraph 8 (a) to 8 (e) and then paragraph 9.

Adverse comments against Teesta were directly made only in the submissions by the SIT and the state of Gujarat and nowhere else.

What were the submissions against Teesta and should they have at all been made considering the Supreme Court did not even recognise her as a party to the appeal? Were the SIT and the state of Gujarat acting fairly in making behind-the-back allegations against Teesta? Shouldn’t the learned judges have stopped their lawyers or alternatively, given a hearing to Teesta?  

Submissions of the SIT

In its submissions, the SIT culled out 30 broad allegations from Zakia Jafri’s complaint and added two more allegations based on the comments or observations of the learned amicus curiae. Only one of the 30 allegations made a reference to Teesta.

The submissions of the SIT were to the effect that R.B. Sreekumar (then Additional Director General of Police) was working with an NGO and Teesta was associated with that organisation and that both had worked together. Teesta was also the convener of the Private Citizens Commission headed by Justice Krishna Iyer and Justice P.B. Sawant, former judges of the Supreme Court and this Commission later included Justice Hosbet Suresh, a former judge of the Bombay high court.

In this capacity, Teesta was apparently in a position to influence Zakia (and obviously, therefore, hoodwink Justice Krishna Iyer, Justice Sawant and Justice Suresh). The SIT submitted that “for reasons best known to her and out of vengeance, (Teesta) was interested in continuing with her tirade and persecution on the basis of unsubstantiated allegations in the complaint in the name of quest for justice with real purpose to keep the pot boiling and sensationalise and politicise the crime.”

The SIT also submitted that Teesta had tutored Zakia Jafri to give a statement before the Justice Nanavati and Justice Shah Commission (and obviously the learned judges did not see through the game). It was also submitted by the SIT that 19 witnesses had insisted on the SIT taking on record their prepared signed statements which were drafted by Teesta and another advocate and which were stereotyped copies/computerised prepared statements signed by them and not their own statements. In other words, Teesta successfully managed to hoodwink five learned judges.

Congratulations to her!

The sum and substance of the submissions of the SIT against Teesta, in this regard, was that Zakia Jafri was being driven by her (or that Teesta was driving Zakia Jafri) “to pursue and so to say, precipitate her complaint.”

Interestingly, the SIT submitted that Teesta had assisted the learned amicus curiae appointed by the Supreme Court, on more than one occasion. The learned amicus had no grievance or complaint against Teesta.

It is really the state of Gujarat which launched a full, frontal attack against her. It was submitted that the allegation regarding a larger conspiracy was pursued by her only out of vengeance, so as to defame the entire state of Gujarat. Zakia Jafri was a tool to further that design and fell prey to the influence exerted by Teesta and lent her name as a complainant in her complaint of June 8, 2006, it was alleged. It was submitted that Teesta had conjured facts and evidence including fabrication of documents by persons who were prospective witnesses of the complainant. She was also influencing and tutoring witnesses and making them depose on pre-typed affidavits as noted by the Gujarat high court in earlier proceedings. It was submitted that the SIT should have taken steps to prosecute her “for damning the elected representatives, bureaucracy and police administration of the whole State of Gujarat for ulterior purposes.”

In conclusion, it was submitted that the issues raised by Zakia Jafri are unfounded and unsubstantiated. The matter is being pursued with full vigour at the behest of Teesta “whose sole intention is to keep the matter alive as rightly contended by the learned counsel for the SIT.”

Consideration of the submissions

The fifth part of the judgment is the consideration of the submissions and the conclusion of the Supreme Court in paragraphs 10 to 92 (pages 171 to 307 of the judgment).

In all these paragraphs and pages, only two references are made to Teesta.

One, relating to the disposal of a Special Leave Petition filed by Zakia Jafri and Teesta which was disposed of on September 12, 2011 and two, relating to an allegation made by Zakia Jafri in her protest petition to the effect that a meeting was held on February 27, 2002 “to plan the attacks on the minorities in the surrounding areas.” Information about this meeting was given to Teesta by her named sources and conveyed to Zakia Jafri. There is no other reference to Teesta and obviously so because she was not recognised as a party to the appeal and any adverse comment about her conduct would be unfair – the Supreme Court would have been conscious of that.

There are, however, some observations that could be interpreted as referring to Teesta.

The Supreme Court noted, at the outset, that “the foremost issue that needs to be answered is about the remit of the SIT to investigate the matter further and correspondingly that of the magistrate, in the peculiar facts of the present case.” The judgement of the Supreme Court has therefore to be appreciated and understood in this limited context. This view was repeated by the Supreme Court when it said:

“…[T]he remit of the SIT in terms of directions given by this Court in relation to the complaint filed by appellant dated 8.6.2006 ought to be limited to the allegations of the larger criminal conspiracy at the highest level, which allegedly resulted in mass violence across the State during the relevant period. In that backdrop, we may have to analyze the case on hand.”

While limiting itself to this exercise, the Supreme Court made certain observations, such as:

“We find force in the argument of the respondent-State that the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also of Mr. R.B. Sreekumar was only to sensationalize and politicize the matters in issue, although, replete with falsehood.”

Nothing about Teesta.

“Appellant [Zakia] in filing the protest petition had the gumption to assert that the list of persons was not exhaustive besides naming new persons as offenders. In the name of protest petition (running into 514 pages), appellant was also indirectly questioning the decisions rendered by the Courts in other cases including sub judice matters, for reasons best known to her. She was obviously doing so under dictation of someone. In fact, the sizeable contents of the protest petition are founded on the affidavits filed by those persons, whose version have been found to be replete with falsehood.”

It is fairly obvious that the “someone” is Teesta. Innuendo.

Finally, the knock-out punch:

“At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat alongwith 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. 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.”

The ulterior design was not identified by the Supreme Court.

If the learned judges really intended to make adverse and damaging comments against Teesta, shouldn’t they have been upfront about it rather than through innuendo? And, since the appeal had also been filed by Teesta, shouldn’t she have been heard instead of being ignored completely and condemned by innuendo?

Perhaps the learned judges did not intend to be unfair to Teesta but unwanted and completely avoidable innuendos resulted in her being treated unfairly by none other than the Supreme Court. The consequence of this is her arrest in a city outside her normal place of residence.

The sixth and final part of the judgment is the Annexure attached to the judgment. This contains the views of the learned amicus curiae and the response of the SIT after further investigation. This is worth reading.

Post judgment events

When the Supreme Court directed the state of Gujarat on March 26, 2008 to issue a notification constituting the SIT, it said that it should be issued as early as practicable, preferably within 10 days. The SIT now constituted by the state of Gujarat to prove Teesta – based on the observations of the Supreme Court – was issued almost overnight. Given the alacrity with which the state of Gujarat has acted, does this say something?

On the issue of delays, yes the matter was pursued for 16 years and why not? If the justice delivery system was so slow that it took 16 years to decide what is to be done, can Zakia Jafri or Teesta be blamed for this? By an order dated March 26, 2008, the Supreme Court gave the SIT only three months’ time to complete the task assigned to it. “The report of the SIT shall be furnished to this Court in a sealed cover after completion of the inquiry/investigation for which three months time is granted,” it said.

The SIT submitted its report on September 12, 2011. Can Zakia Jafri or Teesta be blamed for this delay?

The protest petition filed by Zakia Jafri was decided by the magistrate a few months short of  two years. Can she or Teesta be blamed for this delay?

Against the decision of the magistrate, Zakia Jafri and Teesta filed a revision petition in 2014 and the Gujarat high court decided on September 5, 2017, after almost three years. Can Zakia Jafri or Teesta be blamed for this delay?

Zakia Jafri (and Teesta) filed a Special Leave Petition (after a delay of 216 days) in the Supreme Court in 2018. The Supreme Court delivered its judgement in June 2022. Can the two be blamed for this delay?

What about the pot being kept boiling? By arresting and detaining Teesta and constituting an SIT apparently to investigate a conspiracy to malign the state of Gujarat and some other issues, I wonder who is keeping the pot boiling. The Supreme Court has closed the matter but not the State of Gujarat.

Finally, while the issue before the Supreme Court, as noted, was to consider the remit of the SIT “limited to the allegations of the larger criminal conspiracy at the highest level,” was it at all necessary for the Supreme Court to go well beyond the “foremost issue” and observe that those who had abused the process of the law “need to be in the dock and proceeded with in accordance with law.” With such strong observations, the conviction of Teesta is a foregone conclusion. How often are such observations made? Will such observations ever be utilised by the courts against the state machinery, particularly the police, who fairly frequently abuse the process of the law?

By the way, it is customary to thank the learned amicus curiae for the effort put in in assisting the court. The learned judges did not do that. I wonder why.

Finally, the big question: Does Teesta Setalvad deserve injustice?

Justice Madan B. Lokur is a former judge of the Supreme Court.
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