18, Feb 2015

Prashant Bhushan

Attempts to arrest her and subject her to “custodial interrogation” are uncalled for

The case of Teesta Setalvad is a chilling example of what can still happen to even highly acclaimed and well connected per sons 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 Gulbarg 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 interroga tion“, 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 exist ence 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 commu nity , 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 ha bitually resort to arresting anyone ac cused, particularly if they have a motive Chad Crowe 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 multi ple 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 pow erful and fascist executive, our rights and liberties are truly in dire straits.

The writer is a Supreme Court advocate and member of AAP’s National Executive.

***The Article was originally published by the Times of India. It can be found here.