Liberty above stars: Court

New Delhi, Feb. 19: The Supreme Court today struck a lyrical blow in defence of personal freedom, saying individual liberty was more important "than the stars in the sky, the tea of China and the precious stones in the ocean".

The context was Gujarat police's overdrive to arrest anti-riots activist Teesta Setalvad and her husband. The apex court has now stayed the arrests until further orders.

The court directed the couple, facing an embezzlement case linked to a memorial to the riot victims, to cooperate with the police and hand over all relevant documents.

The hearing and the observations come at a time the option of custodial interrogation has often been misused in the country by those in power to harass rivals and settle scores.

The court said it was not averse to custodial interrogation in cases of huge magnitude. But it chose to liken unnecessary custodial interrogation to putting liberty on artificial respiration or in an intensive care unit.

The bench of Justices Dipak Misra and A.K. Goel today passed the interim direction and reserved the verdict on Teesta's anticipatory bail plea.

Senior counsel Mahesh Jethmalani, appearing for the Gujarat government, opposed anticipatory bail on the ground that it would open the floodgates for every accused to seek to avoid custodial interrogation.

The allegation against the couple is that they have collected over Rs 7-8 crore from donors on the pretext of constructing a memorial to the 2002 Gujarat riot victims but embezzled the funds for personal use.

Justice Misra, heading the bench that heard the case for over two hours, said: "It is a question of liberty on one hand and the accusations, nature of allegations and other things, on the other hand. Liberty is paramount and more important than the stars in the sky, the tea of China and the precious stones in the ocean."

The judge also cited Patrick Henry's immortal cry of 1775 in the middle of the American Revolution: "Give me liberty or give me death."

Justice Misra asked the Gujarat counsel: "Is it such a case that liberty should be taken away? There may be irregularities in the trust (run by Teesta and her husband). Maybe, instead of paying X and Y, they might have paid money to some M, but what is there for personal interrogation?"

Justice Misra added: "We are not saying that custodial interrogation cannot be given in any case. There may be a great scam where custodial interrogation is necessary. Therefore, in this case, it may be a case of bad audit. If the audit is bad, it is a bad audit."

Jethmalani told the court that the state had no mala fide intention; rather, it had acted on complaints from the victims of the riots.

Justice Misra then asked: "Had they (the couple) taken money from victims? Then let them go (to jail). There is a distinction. Pivotal distinction."

Asked by the bench if there was any complaint from the donors, the senior counsel answered in the negative.

Jethmalani said the couple had collected the donations in the name of the victims and of charity, which had been abused. They had abused the trust reposed on them by the victims, whose cause they claimed to espouse, he added.

"You say you are fighting for a cause. Somebody will feel it is a cause. Somebody may feel it is not a cause," the bench replied.

Jethmalani said if that was the argument, the accused in every case should be given anticipatory bail. "Donations are taken from the people in the name of charity," he said.

"No, it is neither a rule nor an exception (anticipatory bail)," the bench observed.

The counsel said it was a case of "rank non-cooperation, tampering with the witnesses" by the couple, for which custodial interrogation was essential. He submitted that they had received over Rs 8 crore since 2007, according to bank records.

Senior counsel Kapil Sibal, appearing for Teesta, sprang to his feet to object to the allegations, saying they were not part of the FIR lodged by Gujarat police.

Justice Misra persisted with the question: "What is the need for custodial interrogation? Who the person is, is absolutely irrelevant. The question is whether liberty should be put on ventilation or in intensive care unit...."

The court said there might be some NGOs against which allegations of funds misuse may have been levelled.

"But if you call them for custodial interrogation, it will be a sad day. Liberty is not unlimited or cannot be put on intensive care unit or ventilation. They (Teesta and her husband) must prove their bona fides by filing documents and attending investigations.

"For the production of documents, why should there be a custodial interrogation?" the court asked.

Jethmalani said such interrogation was necessary to establish the guilt of the suspects.

Judge Misra said: "That (guilt) will be a matter of trial."

Jethmalani protested, saying: "I am being nipped in the bud (meaning investigations were being nipped)."

But the apex court said: "They will produce all documents that are within their knowledge, names of donors, persons to whom they have given money. What will you do in custodial interrogation? Can you compel them to give information in custodial interrogation? There must be a balance. They must produce all data, documents. They are bound to provide. You can ask them questions, but you can't expect them to answer in a particular manner."

The senior counsel said: "If this type of crime in condonable, then every accused will go free. They have not answered any questions. They have avoided every question. If this type of licence is granted, every accused will try to stop custodial interrogation."

Justice Misra observed: "Custodial interrogation is essential in some cases. This is basically a mismanagement of funds."

Turning to Sibal, Justice Misra said: "You must provide the documents. Don't act smart."

"I have never acted smart in my decades of practice," Sibal responded.

Justice Misra clarified: "When we say 'you', it's not you, Mr Sibal, but the client."