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By protecting Teesta Setalvad, the Supreme Court just saved all of us

Suhas Munshi | Updated on: 13 February 2017, 3:39 IST

The case

  • The Bombay HC gives bail to Teesta Setalvad despite CBI\'s protests
  • She\'s accused of receiving funds in violation of FCRA norms
  • The CBI claims her actions threaten national security

The verdict

  • The HC says the right to dissent doesn\'t threaten national security
  • Criticising the government isn\'t the same as being against the nation
  • The state must protect a citizen\'s right to a different ideology, belief

It's not just the power, but the caprice with which the state wields it that is scary.

On 11 August, the Home Ministry decided not to contest the bail plea of Swami Aseemanand, the prime accused in the Samjhauta Express bombing. Yet, on the same same day, it fought tooth and nail in the Bombay High Court against giving anticipatory bail to activist couple Teesta Setalvad and Javed Anand.

Read more: 11 reasons why the ghost of Ehsan Jafri still haunts Modi

The judiciary had to step in, again, to save the activists from the State's arbitrary exercise of its power. The High Court rubbished the CBI's recent discovery of Setalvad being a "threat to national security and public interest", which it had cited to oppose the bail plea.

"In a democratic state, a citizen has the right to have a different ideology, belief and different point of view and it is a duty of the state to protect the said right," the court ruled.

The court said being "against the government" wasn't the same as being "against the nation", a distinction the government would do well not to forget.

A threat that isn't

The primary charge against Setalvad in the current case is that she received Rs 1.3 crore from Ford Foundation for her Sabrang Trust in violation of FCRA regulations.

Other than this, the CBI has little against her to proclaim that she threatens national security.

Arguing for the CBI, Additional Solicitor General Anil Singh accused Setalvad, among other things, of keeping the "2002 riots incident in Gujarat alive".

Teesta Setalvad has had to seek anticipatory bail five times in at least 16 cases filed against her

The court wasn't impressed. Dissent, it said, wasn't a threat to the sovereignty of the nation and granted anticipatory bail.

Setalvad has been fighting the state of Gujarat for 15 years, seeking justice for the victims of the 2002 riots. She has had seek anticipatory bail five times in at least 16 enquiries initiated against her.

Right now, she's helping with the ongoing case of Zakia Jafri, the widow of Congress leader Ehsan Jafri who was slain during the riots, against the then-chief minister Narendra Modi and 58 others.

Guarding our freedom

The high court's ruling is of a pattern. India's judiciary has an admirable track record of weighing in on the side of free speech and dissent against the state.

In recent times, this was evident in the cases of Aseem Trivedi, the cartoonist who was jailed for sedition, and Priya Pillai, the Greenpeace activist who was offloaded from a flight to prevent her from embarrassing the government abroad.

Hearing Trivedi's plea on 18 March, the Bombay High Court said the freedom to express indignation can never be encroached upon unless it incites violence or public disorder.

A citizen has the right to have a different ideology, and it is the state's duty to protect it, says HC

In the same month, the Delhi High Court ruled in Pillai's case that a person's right to free speech and expression "necessarily includes the right to criticise and dissent".

"Criticism by an individual may not be palatable, even so, it cannot be muzzled," the court said. "The state may not accept the views of civil right activists, but that by itself cannot be a good enough reason to do away with dissent.

"The courts have even taken on the government directly for bringing in laws that suppress free speech.

The Supreme Court, on 25 March, struck down Section 66A of the IT Act, which sought to restrict speech on the internet, as "unconstitutionally vague". The law, it said, "arbitrarily, excessively and disproportionately invades the right of free speech".

Indeed, it now seems that the judiciary is the only protective shield for people who are risking their personal liberty in order to hold the state accountable.

Judgments like the one in Setalvad's case, therefore, are precious. No wonder Setalvad is elated that her "inalienable right to dissent" has been upheld.

She would need it, for, as she says, her work is far from over.

First published: 13 August 2015, 12:43 IST
Suhas Munshi @suhasmunshi

He hasn't been to journalism school, as evident by his refusal to end articles with 'ENDS' or 'EOM'. Principal correspondent at Catch, Suhas studied engineering and wrote code for a living before moving to writing mystery-shrouded-pall-of-gloom crime stories. On being accepted as an intern at Livemint in 2010, he etched PRESS onto his scooter. Some more bylines followed in Hindustan Times, Times of India and Mail Today.