'They don't want anybody to stand up and support the vulnerable sections of society who may be targeted.'
Senior Supreme Court Advocate Dushyant Dave discusses the arrests of social activist Teesta Setalvad, who spearheaded the fight for justice for Muslim victims of the 2002 post Godhra riots, and journalist Mohammed Zubair of Alt News with Prasanna D Zore/Rediff.com.
How do you look at the arrests of Teesta Setalvad and Mohammed Zubair?
The two arrests are different and they will have to be viewed differently.
As far as the arrest of the journalist (Mohammed Zubair of Alt News) is concerned, it is an extremely sad commentary because you don't have courage to arrest Nupur Sharma who was equally guilty of seditious statements, but you pick up the 2018 tweet of somebody and arrest him.
I think it's (Zubair's arrest) completely unconstitutional and most unfortunate for a democracy.
Clearly, they want to target the minority community; that seems to be the agenda and what really is adding to that is that the judiciary is not taking a very firm stand.
Now, when this journalist is produced before the magistrate, the magistrate should straight away order his release saying that there is nothing against him and there is no question of even denying him bail or granting his police remand.
But that may not happen (the magistrate denied Zubair bail and remanded him to police custody for four days).
As a result, people's fundamental rights are seriously impaired, taken away and completely violated.
So far as the arrest of Teesta Setalvad and former Gujarat DGP Sreekumar is concerned, I must say, with great sense of regret, that it is deeply disturbing and sad that the Supreme Court should have at all made these observations against them in its judgment.
It was no part of their subject matter, no part of their function to really go behind (these people).
Judges should have really appreciated that there are people who stand up for people who are being victimised by the executive of the day.
We saw how in 1984, for example, nobody stood up for the Sikhs. Nobody stood up in the whole country and we saw that not only the Sikhs suffered during those four or five days of riots across the country, but that justice has not been meted out to them for 30 years thereafter and is completely unbelievable. It really is a dark blot on our democracy.
If some people were willing to stand up for the Muslims after the Gujarat riots, the Supreme Court should have appreciated them; the Supreme Court could have said there is no substance in the matter and there is no need to now proceed so far as Zakia Jafri's petition is concerned, but they should have said 'We applaud the efforts of this civil society members who have brought it to our notice.'
Far from doing that, the judges observing that they need to be investigated and prosecuted is unbelievable. My respect, my affection for the Supreme Court is seriously diminished.
What has changed in the Supreme Court between 2002 and 2022? In 2002 the Supreme Court gave hope to the victims of the Gujarat riots seeking justice by setting up an SIT.
In 2022 the Supreme Court comments about there being 'ulterior design to keep the pot boiling' and observes that 'all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.'
(After) The emergence of a powerful executive under Mr (Narendra Damodardas) Modi everybody has changed.
The SIT (appointed to investigate the involvement of then chief minister Narendra Modi in post Godhra riots) changed (its view), the amicus curiae Mr Harish Salve changed (his view); they have all been tiptoeing the lines that the current BJP government has been giving them and certainly the Supreme Court has become much more soft on what happened in Gujarat in 2002.
It's really because of the emergence of a very powerful persona of Prime Minister Mr Modi and the home minister Mr (Amit Anilchandra) Shah which is leading to this kind of a change of outlook on the part of everybody involved.
In fact, the SIT in the beginning produced tremendous evidence against the government of the day without particularly damning the (then) chief minister (Narendra Modi), and other officials. It is really sad that the judges totally ignored this.
I don't know what was presented to the judges. Nobody can deny that riots did take place. Let us for a moment say that Mr Modi had nothing to do with the triggering of riots, but undoubtedly Mr Modi's government miserably failed in protecting the minorities.
You had Ehsaan Jafri (Zakia Jafri's husband who was burnt alive in the Gulberg society massacre) keeps begging for help and for hours help doesn't come; (then) the commissioner of police visits his house and assures that no harm will come to you and within hours the mobs come and burn down the whole society killing more than 60 people including men women and children.
Now, what can be more ghastly than that and if the Supreme Court ignores that, then nothing really now matters in this country, everything in this country has come to an end.
How tenable are the charges pressed against Zubair under IPC sections 153-A (promoting enmity between different groups) and 295-A (malicious acts, intended to outrage religious feelings)?
They are the completely bogus, trumped up; they have no legs to stand in the eye of the law.
If a judge is conscientious, if the judge knows law, he must release them (Zubair, Setalvad and Sreekumar), and the law will release them.
Everybody's working under pressure today in the country.
If you see, for example in Shah Rukh Khan's son's case, the boy didn't have an ounce of drugs on him, yet the same judiciary sent him (to jail) and not only denied him bail, but sent him to (police) remand.
And then ultimately after six weeks he was released on bail and now, even the Narcotics Control Bureau has said that the FIR was completely bogus.
So, what does that tell you about the judiciary? It shows that the judiciary is failing to live up to its Constitutional duties.
What is the message this government is trying to send to journalists, social activists and fact-checkers?
It's very clear. They don't want anybody to stand up and support the vulnerable sections of society who may be targeted.
The government says that whatever we do is fine and everybody must accept it.
Can the Supreme Court's comments form the basis of an FIR against Teesta Setalvad and R B Sreekumar?
The comments, the observations by the Supreme Court were totally uncalled for. They really go against the very grain of the duty that the Supreme Court is supposed to discharge as the custodian of citizens' fundamental rights.
The government of the day needed just something to latch on and the Supreme Court gave it to them. It sends an extremely wrong message to society because we are still a democracy, an extremely heterogeneous society. And there are people who are bound to be victimised in a society like ours.
And if somebody doesn't stand up for those victims, what will happen? We all know that power sometimes goes to the heads of politicians and the police and they don't indulge in some kind of atrocities.
Every vulnerable section of society needs somebody to speak for them.
Mr Modi has time and again spoken in the name of democracy, coined the sabka sath, sabka vikas slogan and yet this happens. It doesn't augur well for the country and doesn't speak well of the prime minister, who is so popular today.
He is the most popular leader and he is the one who should really ensure that this kind of injustices don't take place.
The BJP government (at the Centre), Prime Minister Modi and Union Home Minister Amit Shah have been criticising and blaming the (then) Congress (government) for injustice meted out to the Sikhs.
Just two days ago the prime minister called out the injustices meted out to all kinds of political and social activists during the Emergency.
They (Modi and Shah) have been criticising, and rightly so, what happened in the country (during the Emergency and to the Sikhs during and after the 1984 anti-Sikh riots), so one expects them to speak against the injustices happening in the country today as well.