By Aashna Jain, National Law University, Jodhpur.

Liberty is more important than the stars in the sky.

What is this case about? This is not a case of justice for victims of Gujarat Riots.

This case relates to a plan of the two activists to raise money to convert the riot-affected housing colony in Ahmedabad into a memorial for survivors of riots. The police filed a case accusing them of embezzling money that they had raised for this purpose.

The actual case against the two activists, relating to their alleged embezzlement of funds, has not even come up in court. The police have not yet filed a charge sheet against them, more than a year after registering the first information report, in January 2014. The police have been accusing the activists of misdeeds in various affidavits that they have filed in court arguing against giving anticipatory bail to the activists.

The question, however, is how having the two activists in custody will help the investigation.

Before one reads about the case:

  • Citizens for Justice and Peace, was set up on 1 April 2002, in the immediate aftermath of the Gujarat riots, to promote communal harmony. It is among the few organizations that provides legal aid to the survivors of the 2002 riots and has been instrumental in obtaining the 117 convictions that have come so far.
  • Sabrang Trust, was established after the 1992-93 communal violence in the city then known as Bombay.

The popular version of facts:

In 2013, twelve residents of the Gulbarg Society who were the victim of Gujarat riots, accused Setalvad of collecting donations in the name of riot victims but failing to use them for their benefit and sent a legal notice to her. They claimed that she had collected huge donations from national and international organizations in the name of providing financial assistance for reconstruction of houses or developing the society into a museum but it was not passed to the members of the society.

The complainants had said they were not being given the money collected in their name, even as they lived in penury. Anand and Setalvad had responded to the complaint in May 2013, clarifying their accounts and the nature of donations raised and for what they had been utilized. The Ahmedabad Police’s Crime Branch did nothing about the complaint for nine months, but suddenly registered an FIR days after Setalvad and Zakia Jafri announced their decision to challenge the lower court’s order in the Gujarat High Court, asking that charges be framed against chief minister Modi.

The FIR claims that donations were asked for and received by both trusts, but Setalvad claims it was only Sabrang. The CJP, Setalvad explains, works mainly to give legal aid to riot victims, whereas Sabrang is the general trust to work on communal harmony.

At the time the memorial was proposed, there were no takers for the flats in Gulberg Society, which is in a Hindu-dominated area in the main city of Ahmedabad. The Sabrang Trust proposed to raise money through donations to purchase the properties from residents at market rates. Residents in turn promised not to sell their property until Sabrang was able to raise enough funds. However, due to rising land prices across Ahmedabad, Sabrang realized they would not be able to raise enough money through only donations. They gave up the idea altogether in 2012.

One of the main charges in the FIR is that the two organizations collected funds from foreign donors for the memorial, but had not given the money to the intended recipients. It alleges that the foreign donations Sabrang Trust received between April 10, 2007 and February 20, 2014, amounting to Rupees 2.62 crores, were intended for the memorial. It also said that Citizens for Justice and Peace received foreign donations of Rupees 1.31 crores.

In a 41-page public affidavit, Setalvad and Anand show excerpts from their accounts to prove that the total amount raised for the museum did not exceed Rupees 4.5 lakhs, only Rupees 50,000 of which came from foreign donors. The Sabrang Trust received only Rupees. 1.33 crores in foreign funds during this period, the bulk of which went towards legal aid. Citizens for Justice and Peace received Rupees. 1.15 crores. The Ahmedabad crime branch, they say, manipulated their bank statements to arrive at the figures of Rupees 2.62 crores and Rupees. 1.31 crores.

They two have also filed a case in the Bombay High Court seeking to quash the FIR and sought interim relief from the Supreme Court. After a First Information Report was filed by the Ahmedabad police on 4 January 2014 Teesta Setalvad and Javed Anand were granted interim bail. Setalvad alleges that this FIR is a conspiracy of the BJP government in Gujarat.

The bail application stated, “The FIR is a mala fide action of the Crime Branch, Ahmedabad, to intimidate a human rights defender. This is the fifth time that a false criminal case has been lodged since 2004 because of me and my organization’s consistent legal support to the victims of 2002 riots. Gulbarga cooperative housing society had been totally burnt down by politically motivated anti-social elements and 68 people had lost their lives in the massacre.” It also said the accusation was brought by “powerful forces in Gujarat who wished to stymie the appeal in the Zakia Jafri case”.

On finding that the Crime Branch, Ahmedabad instead of acting on his complaint had filed an FIR against Setalvad and others, the Secretary of the Gulbarg Housing Society, Firoz Gulzar Pathan moved the court complaining against Gujarat police’s biased approach. The court sought a report from the Crime Branch. The Police responded by claiming that the complaint did not have any substance. This was countered by the complainant’s advocate who maintained that the Crime Branch had not even bothered to question the complainant before shelving the complaint. This led the magisterial court on 15 February 2014 to direct the city crime branch to lodge an FIR and start investigation against former residents of Gulbarg Society who had made the complaint against Setalvad last year. On 28 November 2014, local court rejected pleas filed by activist Teesta Setalvad, her husband Javed Anand and their two NGOs seeking to de-freeze their bank accounts attached earlier by police in connection with the embezzlement case. On 12 February 2015, Gujarat High Court rejected Setalvad’s anticipatory bail plea regarding the case. However, the next day the Supreme Court of India agreed to hear her bail plea and stayed arrest till 19 February 2015.

Finally,

The Supreme Court on 19th February struck a lyrical blow in defence of personal freedom, saying individual liberty was more important “than the stars in the sky, the tea of China and the precious stones in the ocean”.

The apex court has now stayed the arrests until further orders.

The court directed the couple, facing an embezzlement case linked to a memorial to the riot victims, to cooperate with the police and hand over all relevant documents.

The hearing and the observations come at a time the option of custodial interrogation has often been misused in the country by those in power to harass rivals and settle scores.

The court said it was not averse to custodial interrogation in cases of huge magnitude. But it chose to liken unnecessary custodial interrogation to putting liberty on artificial respiration or in an intensive care unit.

The bench of Justices Dipak Misra and A.K. Goel today passed the interim direction and reserved the verdict on Teesta’s anticipatory bail plea.

The judge also cited Patrick Henry’s immortal cry of 1775 in the middle of the American Revolution: “Give me liberty or give me death.”

Justice Misra added: “We are not saying that custodial interrogation cannot be given in any case. There may be a great scam where custodial interrogation is necessary. Therefore, in this case, it may be a case of bad audit. If the audit is bad, it is a bad audit.”

The question is whether liberty should be put on ventilation or in intensive care unit….”

Jethmalani said such interrogation was necessary to establish the guilt of the suspects. Judge Misra said: “That (guilt) will be a matter of trial.”

And hence reiterating “INNOCENT UNTIL PROVEN GUILTY”.