Narendra Modi-baiter and activist Teesta Setalvad, because of some strange decisions of the Supreme Court, remains free. Two courts had green-flagged her arrest in a serious case of embezzlement
You are an ordinary Indian citizen. The police files a case against you of embezzlement of funds to the tune of crores of rupees, based on extensive material at its command. Apprehending arrest, you approach a Sessions Court for anticipatory bail. Your application is rejected. You then approach the High Court. The High Court upholds the rejection of the anticipatory bail.
Your last hop and hope is the Supreme Court. In the course of the two rejections, the courts had held there was enough material for you to be taken into custody. Now, the Supreme Court is to deal with something that is of the most common nature on the most common grounds.
It’s not a case that should exercise too many of the grey cells of our eminent judges. Anticipatory bail or no bail — that’s the simple choice the justices, who deal with far weightier matters of law and the Constitution, have to make. As an ordinary citizen, you get a verdict one way or the other without the Bench sweating it out for days.
But, what if you are not an ordinary citizenIJ If you are the great human rights activist, anti-communal crusader, nationally-recognised Teesta Setalvad, who has taken it upon herself to rehabilitate, with money received from many sources abroad, the various victims of the violence that had rocked Gujarat in 2002, the script plays out differently — at least for a while.
This is not to insinuate that the apex court has been dealing with her case in a manner that discriminates between the other citizens and her. But it has certainly behaved in a most perplexing manner.
let us examine the issue from towards the end as it stands for now and trace backward the Curious Case of Teesta Setalvad’s Anticipatory Bail Plea. Whether the Supreme Court likes it or not, its conduct has become the focal point of controversy. On March 19, a two-judge Bench of Justices Deepak Misra and Adarsh Kumar Goel, hearing Ms Setalvad’s request to quash the rejection of her anticipatory bail plea, refused to pass a verdict and referred the matter to a larger Bench.
This was a rare move, because bail petitions of such nature are almost never referred by judges to a larger Bench. The reference to a larger Bench is done when the matter concerns substantial issues of either the law or the Constitution. And, in such matters, the judges, while referring the issue to a larger Bench, often lay down the points that need to be gone into by the expanded Bench. In the Teesta issue, there was clearly no confusing issue of the Constitution or that of the law.
What was the case then made outIJ The judges observed, “Having stated about the value of liberty, the concept of regulated freedom, the societal restriction, the supremacy of the law, the concept of anticipatory bail and the assertion of the prosecution about the non-cooperation of the appellants in the investigation, and the asseverations made by the appellants, we think it appropriate that the matter should be head by a larger Bench.”
There could not have been a more vague explanation. Justices Misra and Goel have not just passed on a responsibility they ought to have shouldered but also allowed Ms Setalvad, whom two courts found fit to be taken into custody, freedom — and that too for an unspecified period of time, because she will remain free until such time a larger Bench upholds the lower courts’ rulings. Moreover, the reasons the judges offered would be equally applicable to any citizen seeking anticipatory bail. Will all those people have their pleas heard by a ‘larger Bench’IJ
In the given situation, it would be relevant to quote from an article that noted lawyer TR Andhyarujina wrote some time ago. He said, “No particular status or importance attaches to a Bench of three judges over a two-judge Bench in deciding a case, unlike a minimum number of judges required to decide any case involving a substantial question of law…or for hearing any reference under Article 143.”
What then, is the rationale behind the decision of Justices Misra and Goel for referring a routine matter to a larger BenchIJ It certainly isn’t Article 143. The two learned judges need not, of course, have given any reason for doing so.
Order VI Rule 2 of Supreme Court Rules 2013 reads, “Where in the course of the hearing of any case, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.”
However, since the two judges did offer reasons — talking of the value of liberty and the concept of regulated freedom and the rest — at least the reasoning should have had substance. Also, one had not known that the “concept of anticipatory bail” needed clarification by a larger Bench as if it dealt with a substantial matter of the Constitution or the law!
But this was not the first time that the Teesta matter case would be shifted to another Bench. Indeed, it had happened before the case reached Justices Misra and Goel. These two judges were not part of the original Bench hearing the issue; Justices SJ Mukhopadhyay and NV Ramana were. On February 13, while extending interim protection from arrest to Ms Setalvad, the two judges had come down heavily on her conduct and made it known that she would be treated no differently from any other citizen accused of serious embezzlement of funds.
Thereafter, the mysterious happened. The Chief Justice of India shifted the case to another Bench comprising Justices Misra and Goel. The official line was that one of the judges on the original Bench had recused from the case. The name was never revealed, nor did the supposedly recused judge confirm the news. It was done in a needlessly secretive manner, leaving scope for further speculation.
Again, the Chief Justice has the administrative authority to take a case from one Bench and give it to another, and he (or she) need not supply a reason for that. But — just as in the earlier instance where two judges offered unconvincing explanations for referring the matter to a larger Bench — the Registrar of the Supreme Court insisted on maintaining that the transfer was necessitated due to the recusal by one of the judges.
To reiterate, we are left holding two mysteries: Why did a two-judge Bench refer a routine matter of anticipatory bail plea to a larger BenchIJ Why was the case transferred from one two-judge Bench to another two-judge Bench, only to be now referred to a larger BenchIJ Indeed, what is so special about Teesta Setalvad’s anticipatory bail petitionIJ!