A three-judge Supreme Court bench convened late on Saturday night to protect rights defender Teesta Setalvad from arrest and stayed for a week a Gujarat High Court order rejecting her plea for regular bail and asking her to surrender immediately in a case alleging fabrication of evidence linked to the riots of 2002.

Gujarat High Court had observed earlier in the day that Setalvad had made attempts to unsettle a democratically elected government and sully the image of the then chief minister, Narendra Modi, in connection with the riots and tried to send him to jail.

In a special late-night hearing, a rarity on holidays and during vacations, a Supreme Court bench of Justices B.R. Gavai, A.S. Bopanna and Dipankar Datta questioned the denial of time to Setalvad to appeal against the high court order, saying even an ordinary criminal is entitled to some form of interim relief.

“In ordinary circumstances, we would not have considered such a request. However, it is to be noted that after FIR was registered on June 25, 2022, and the petitioner was arrested, this court considered the prayer for grant of interim bail and granted the same on certain conditions on September 2, 2022. One of the factors which weighed with this court was that the petitioner is a woman.”

Women are entitled to special protection under Section 437 of CrPC.

“We find that taking into consideration this fact, the learned single judge ought to have granted some protection so that the petitioner has sufficient time to challenge the order passed by the single judge. In that view of the matter without going into the merits, finding that learned single judge was not correct in granting even some protection, we stay the impugned order for a period of 1 week,” the bench said after a 37-minute hearing.

The apex court said the registry shall obtain orders from the Chief Justice of India for listing Setalvad’s bail plea before an appropriate bench. As the hearing commenced before the three-judge bench, senior advocate C.U. Singh, appearing for Setalvad, submitted that the top court had on September 2, 2022, granted interim protection to the activist till the high court decided her bail application. Singh stated it is nobody’s case that she has violated any condition of the interim bail granted to her.

“Gujarat High Court refused to stay the operation of the order for 30 days, but no reasons were given to explain the rejection in its order and immediate surrender was ordered,” he said.

Solicitor-general Tushar Mehta, appearing for the Gujarat government, urged the court to mete out the same treatment to Setalvad as to any ordinary citizen.

The bench then observed: “A person is on bail for the last 10 months under the orders of this court. What is the urgency that a person should not be granted even seven days to challenge the order? Are the skies to fall? We fail to understand the approach of the high court. What is the alarming urgency?”

Here was an individual, Mehta said, who thinks she is not supposed to be treated like an ordinary criminal. “She is an ordinary criminal,” he said.

“Even common criminals are granted interim relief,” Justice Gavai observed. Mehta submitted that Setalvad started a campaign making false allegations against everyone.

Responding to Mehta’s contention, Justice Datta observed:” Mr Solicitor, her conduct might be reprehensible. The only question is whether the person is not entitled to interim bail.”

As the apex court is closed for summer vacation and it was a Saturday, a court holiday, there were just the judges, a few lawyers and court staff in courtroom 12 where the three judges heard the case.

The three-judge bench heard the matter in a special sitting after a two-judge vacation bench differed on granting interim protection from arrest to Setalvad.

Facing impending arrest, Setalvad moved the apex court seeking protection from arrest but a two-judge vacation bench could not reach a consensus on granting her interim relief.

The vacation bench of Justices Abhay S. Oka and Prashant Kumar Mishra referred the matter to Chief Justice of India D.Y. Chandrachud, who swiftly put together a bench of three judges to hear Setalvad’s petition challenging the high court order at 9.15pm.

Earlier in the day, Justice Nirzar Desai of Gujarat High Court had directed Setalvad to surrender immediately. Setalvad was arrested in June last year, along with former Gujarat director-general of police R.B. Sreekumar and former IPS officer Sanjiv Bhatt, in an offence registered by Ahmedabad crime branch police for allegedly fabricating evidence to frame “innocent people” in the post-Godhra riots cases.

In its judgment, the high court observed that prima facie Setalvad used her close associates and riot victims to file “false and fabricated affidavits before the Supreme Court with a view to unseat the establishment and to tarnish the image of the establishment and the then chief minister (Modi)”.

If today some political party gave her the task to unsettle the (then) government, tomorrow “some outside force may utilise and convince a person to make efforts in a similar line causing danger to the nation or to a particular state by adopting the same modalities”, it said.

Enlarging her on bail will send a false signal that everything in a democratic country is so lenient that “even if a person goes to the extent of making efforts to unseat the then establishment and disrepute the image of the then chief minister to see that he is sent to jail”, the person can be released on bail, the court said. Setalvad is a Padma Shri awardee and a former member of the erstwhile Planning Commission.

She helped the riot victims with the intention to gain personal and political benefits by collecting huge funds and projecting herself as a social leader and eventually becoming a member of the Planning Commission, the high court said.

The statement of witnesses indicate that she had prepared false affidavits and convinced the victims to file them before the Supreme Court and other forums and name innocent persons just to fulfil her own and that of Congress leader late Ahmed Patel’s personal and political agenda, the court said in its order.