New Delhi: It would be fair to say that, right from the start, the legal system has struggled to come to terms with what happened in 2002, Gujarat, and at no point has it followed the ordinary course laid down by the law. 

From reinvestigations by court-appointed special investigation teams, to special fast-track courts, to transfers outside the state; all of these were exceptional interventions, and were  conducted under the gaze of the Supreme Court.

For many, it was seen as a testament to the commitment of the judiciary to ensure that justice is not only done but must also be seen to be done, even if, at times, by ignoring regular criminal procedure. As a sitting justice of the Supreme Court recently observed in a public lecture, the law and justice are not the same thing. 

We are currently witnessing the aftermath of the most recent turn in this history of procedural exceptions to the law in respect of the Gujarat riots, where in a 24 June 2022 order dismissing petitions [Zakia Ahsan Jafri v. State of Gujarat & Anr.] for proceeding in complaints filed by one of the victims to pursue what has been dubbed as the “larger conspiracy”, the Supreme Court went ahead to make specific and pointed remarks about the roles played by certain individuals, seen by the Court as having preyed on the victims’ emotions to keep the “pot boiling”. 

The Court stated in its order that these persons “need to be in the dock and proceeded with in accordance with law”. The very next day, a willing police agency obliged and registered a case against, among others, Teesta Setalvad, a former journalist turned activist, and R B Sreekumar, a former director general of police in Gujarat, with the first information report (FIR) carrying extracts of the Supreme Court’s order.

This is not a piece about whether the Supreme Court could or should have done things differently. That ship has sailed. Nor is this case about whether or not the police ought to have registered a case on the basis of certain observations made in an order (no direction as such was passed calling on any agency to take action). 

This piece is about what happened afterwards—the arrests on 25 and 26 June 2022 and custodial detention of a 60-year-old woman and a 75-year old retired public servant. Since a trial court rejected their bail applications on 30 July 2022, this custodial detention continues, with both persons lodged in jail. 

Some Foundational Principles

This order rejecting bail came at the end of a month where a different bench of the Supreme Court was at pains to remind the lower judiciary and police about a need to be circumspect in robbing persons of their liberty [Order passed on 11 July 2022 in Satender Kumar Antil v CBI & Ors]. 

In a section titled ‘role of courts’, the order also noted that courts must not consider extended pretrial custody as a way of doing justice: “Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature, with that of a possible adjudication by way of trial.”

Presumably rankled by the arbitrariness of outcomes by the trial courts, which it dubbed as “angels of liberty”, the Supreme Court after a long time expressed support for a statutory measure to rationalise bail decision-making in India. 

Till any action is taken on these observations, we are still where we always were when it comes to bail decision-making, which is a product of hoping judges judiciously exercise the unfettered discretion vested in them. Contrary to what many think, bail is not simply about securing appearance for investigation or trial, but a decision arrived at by considering a host of often-conflicting principles (see pages 21-22 of the 154th Law Commission Report culling out some of these). For instance, even though a person is presumed innocent, the seriousness of accusations levelled and offences alleged are one of the primary factors that courts consider. 

A Curious, if Expected, Outcome?

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If you remove the pretence that bail is about securing appearance but more about the gravity of accusations and, somewhere in the matrix, fit in the presumption of innocence, what happened with the bail applications of Setalvad and Sreekumar starts to seem entirely expected.

Since the arrested persons were in judicial custody, this fact suggests there was limited, if any, role to be played by them in the ongoing investigation by the police. Whatever the police had to ask them, it has already. So continued detention could only be justified on the basis of these arrested persons either posing a threat to the investigation or being flight risks, or because of the seriousness of allegations requiring their continued detention. 

The trial court agreed with the prosecutors in concluding that both these issues of tampering and flight would arise in respect of the arrested persons, without ever telling us how that assumption is borne out. 

But even if the court was to have found in favour of the arrested persons, that alone would not suffice: the gravity of the offence had to be contended with. About this, there are no doubts whatsoever—the court makes it clear that this case of persons fabricating charges against a sitting chief minister of the state was an offence of the most serious kind. 

It was bolstered by the seriousness with which the Supreme Court itself had treated the matter, and indeed the order often refers to the observations made by that Court.

Ultimately, much like any other case, it is this perceived seriousness of the offence by the court which ultimately blurs everything else into insignificance. It does not matter whether the persons are not flight risks. Nor does it matter that the law in fact requires women and senior citizens to be considered more favourably in all matters of bail (a feature the Supreme Court reminded trial courts in its 11 July order). 

None of that mattered, because as the trial court observes at Paragraph 7.7, “if the applicants-accused are enlarged on bail then it would impliedly encourage to the wrong doers that in-spite of doing such type of accusations against the CM and others, the Court has lightly enlarged the accused on bail” (emphasis mine). 

This observation, in the ultimate paragraph before the operative portion of the order, is where the court lets the cat out of the bag. Bail should be rejected not because the persons were a threat to the case, and in spite of the fact that the law required their case to be treated more favourably than others. Bail had to be rejected  because the right message had to be sent to the rest of the country.

Grim Portents

In Jonathan Littel’s rigourously researched fictional memoir of a Nazi officer in The Kindly Ones, the protagonist noted how the orders of the upper echelons of the state machinery were intentionally kept ambiguous (pages 548-49 of the 2009 English Translation). 

The idea was simple—it allows the party supremos to see which subordinates can fully grasp the will of the leader, not just the orders, and whoever can do so was an excellent National Socialist. 

The translation of the Supreme Court’s order across the criminal justice system in the present case bears a striking resemblance, if unwitting, to this method. The Court said that these persons must be placed in the dock by being proceeded against “in accordance with law” without specifying anything further. 

The instruction to proceed “in accordance with law”’ was understood by the police in a way, resulting not only in registration of FIR but also arrest and custody, which although questionable was not strictly illegal. 

It has now been understood by the trial court as requiring rejection of bail for both Setalvad and Sreekumar, in a manner that is unequivocally contrary to the law, as things stand today. 

Which brings us back to where we started: Justice and the law are not synonymous. Could it be, then, that the trial court reasoned that bail had to be denied even if it was contrary to law, because it considered this was justice being done? 

One aspect of this problem—inversion of the criminal process by sanctioning punishment without trial—has been identified by the Supreme Court already in Satender Kumar Antil. 

But there is something more on display here: a court concluded that the existing legal framework could be undercut to send a message to society that  those even allegedly making false charges to defame popular leaders and the government must be placed behind bars.

The order rejecting bail has been challenged before the High Court of Gujarat. Besides considering the issue of whether bail ought to be granted or not, it is necessary for the High Court to tackle this misplaced national passion head on and restore the primacy of the law. 

That is the message which must be sent to society, before it is too late.  

(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)