A Defending General
Foot Soldier of the Constitution: A Memoir by Teesta Setalvad, LeftWord Books, 2017; pp 226, ₹280.
What does the Constitution really mean? Who interprets it? Who
implements it? This book by one of India’s most courageous citizens
offers us some insight into these questions. It also explains why
someone like Teesta Setalvad who has been not just a foot soldier
but also a general defending the Constitution, is enemy No 1 for a
regime bent on destroying it.
Why do people believe so deeply in the Constitution, and the promise of
fraternity and equality that it embodies? For Setalvad, some of this
belief in the Constitution came from her own lineage of legal
luminaries; and her account of her growing-up years is
interesting. But Setalvad also recognises that she is not alone—that
this belief is shared by many others, including the survivors of the
ghastly communal violence she describes—the victims of the Gulberg
housing society in Ahmedabad and the Naroda Patiya
massacre. That they have not taken to retaliatory violence and instead
pursued their cases through the courts is a testimony to this
unshakeable belief.
Although she is best known for her work in seeking justice for survivors
of the Gujarat genocide of 2002, Setalvad’s account places her efforts
regarding the Gujarat violence in the context of a long history of
journalistic coverage of and engagement with communal
violence. She and her partner Javed Anand started Sabrang
Communications and Communalism Combat in 1993. Some of her
descriptions of witnessing communal violence are startling—seeing
someone’s hand chopped off in front
of her, and desperately working the phones in Gujarat in 2002—among
others. The book also brings back the horrors of 2002 like the killing
of Kausar Bano and her nine-month-old foetus at swordpoint, and a small
child whose entire family had been wiped out
in front of him.
For at least five years before the Gujarat genocide, she had been
touring the country warning people that there was a terrible build-up of
communalisation, censuses were being conducted of Muslims and
Christians, and that textbooks were full of hate. I have
heard her speak with urgency and detailed factual backup at one of
these meetings. As a lawyer and civil liberties activist, K Balagopal
commented in the August 2003 issue of Communalism Combat that the
journal was remarkably
prescient. In some sense, we are all living through that kind of
prescient horror now, knowing that fascism is upon us, but not knowing
how to stop it.
The book also offers several insights arising out of her career as a
journalist and activist, for example, on the importance of beat
reporting, covering the Antulay cement scam trial, the world of Bombay
journalism in the 1980s, the critical importance of institutions
to maintaining democracy, the need for universities to teach courses on
the history and sociology of riots, and the fact that peace must
eventually come through a combination of demands upon the system and
citizen action to promote harmony.
No Level Playing Field
The most interesting chapters of the book, however, are the last two
where she describes the tortuous processes of seeking justice in the
Supreme Court through a court-monitored special investigation team (SIT)
and the recurrent legal cases against her, the
most recent ones timed neatly with the filing of the Zakia Jafri case.
This case directly names Narendra Modi as a potential accused, and
raises the critical question of command responsibility.
When Setalvad describes the functioning of the SIT, the story becomes
sadly familiar. The petitioners are denied copies of the SIT’s report
while the accused, the State of Gujarat does receive these copies. This
was much like the National Human Rights Commission,
who when asked by the Supreme Court in 2008 to investigate the Salwa
Judum in Chhattisgarh, acted as if it was the petitioners who were the
accused, even as it worked closely with the state and central
governments.
As the author notes:
It has been found time and again, that the Courts, even the Supreme Court, treat petitioners or interveners who are rights advocates or witness/victim survivors on a different plane than the mighty state. When the rights advocates or witnesses initiate legal action they are often merely given a formal role—their submissions heard by the Court. But they are not taken as seriously as the views of the State. Interventions are subtly relegated into a hierarchy. Procedural fair play is subverted and substantive shifts take place in jurisprudence. (p 148)
What totally buries the idea that the courts provide a level playing
field is the ease with which petitioners can be tormented by seemingly
unconnected and entirely false cases. How is it that so many petitioners
in human rights cases are embezzlers, murderers
and what not? In Setalvad’s case, she has been charged, among other
things, with misusing funds and violating the Foreign Contribution
(Regulation) Act; one of my co-petitioners in the Salwa Judum case,
Kartam Joga, was in jail for two years for supposedly
being involved in an ambush of the Central Reserve Police Force. I have
been accused of murder, rioting and bearing arms. And yet, somehow
these clear misuses of the state’s machinery to coerce and deter
petitioners are not taken seriously by the media or
courts with corresponding strictures passed against the state for
harassing their opponents. In Setalvad’s case, she lives on the edge of
being arrested and it is a wonder that she has managed to bring up
children, and continue her work.
The book also highlights another familiar fact: senior Supreme Court
lawyers defending the state are getting paid lakhs per hearing, ranged
as they are against desperate survivors, activists and pro bono lawyers.
Setalvad brings out the dubious role played
by amicus Harish Salve in accepting R K Raghavan as head of the SIT at
Gujarat counsel, Mukul Rohatgi’s suggestion, without consulting the
petitioners. Raghavan concluded that there was not enough evidence of a
conspiracy to charge Modi. When Modi, armed with
this “clean chit,” went on to become the Prime Minister, Raghavan found
himself appointed as India’s High Commissioner to Cyprus.
One of the most moving passages of the book is her joint tribute to
Maulana Umarji and Veer Bhadra Mishra of Varanasi. Maulana Umarji ran
the Godhra camp, was imprisoned and falsely implicated in the Godhra
train burning incident, and did not even get bail
from the Supreme Court while the perpetrators of the most heinous
crimes against Muslims got bail within six months. The latest in this genre is the acquittal of Maya Kodnani.
Autobiographies are always difficult to write but they are essential,
because India and the world need to know what inspires and sustains
someone like Setalvad. Tighter editing by the publishers would have
eliminated repetitions that have crept in here and
there. For instance, on page 59 we are told that she comes from a
family of distinguished lawyers—this after 10 pages of description of
their legal careers. Several issues, for example, mass graves and the
appointment of Raghavan as head of the SIT are repeated
in different places. In many cases the description of an event or a
phenomenon degenerates into a list of family and friends who supported
her through it. One hopes that when the book goes into a second
printing, the publishers will take care of these distracting
irritants.
