In her new book, “Foot Soldiers of the Constitution: A Memoir”, well-known human rights activist wonders as to why India's High Courts and the Supreme Court, who are vested with a unique power of the suo motu jurisdiction, have failed to use it with any communal riots across the country.
In the chapter 'Let Hindus Give Vent' of the book, which was released in January 2017, Setalvad says, the higher courts are vested with this power as part of their “original jurisdiction”, and they can exercise “their inherent powers with regard to the enforcement of fundamental rights.”
Calling suo motu “a powerful phrase in legal parlance that can be used by the Courts to inspire faith and confidence”, Setalvad says, the Latin phrase means ‘on its own motion’, which is “equivalent to the term sua sponte – when a lofty institution of the government acts on its own cognisance when there is a gross violation of fundamental rights.”
Coming from a family of legal luminaries, Teesta Setalvad is grand-daughter of MC Setalvad (1884-1974), the eminent Indian jurist who became the first and longest serving Attorney General for India (1950–63).
Recalling how under suo motu, the Courts have taken up matters and issues on their own, when they receive a letter of complaint and when they read a media report, Setalvad says, the power of the suo motu was used by the Supreme Court to “query the defacement of the mighty Himalayas”, yet, “When mass crimes against sections of our own population shook the core of the Indian republic, the power of suo motu has not been used.”
This is not just true of the the "2002 pogrom" in Gujarat, Setalvad says, but also “the widely-reported 1983 Nelli massacre, the extensively covered 1984 Delhi riots, the 1989 Hashimpura-Meerut killings (when the bodies of those shot dead were washed upon the shores of the Yamuna, near Delhi), and the 1992-93 Bombay riots”.
“Rohith Vemula’s family and fellow students filed a case in the Hyderabad High Court against the Vice Chancellor Appa Rao Podile. It languishes in the courts. Despairingly, Rajah Vemula asked me, ‘Can’t the Court intervene with the power of suo motu?’ Ashamed, and forced to answer on behalf of a system that has given us limited redress, I could not reply”, says Setalvad.
Recalling the 2002 riots, which is the main focus of the book, Setalvad says, “The Gujarat High Court did not – on a suo motu basis – take up any matter related to the 2002 violence. Never mind that two judges, one retired and one sitting of that very high court, were physically attacked.”
She recalls, “The Chief Justice of the Court is on record stating that they needed to protect themselves by moving to Muslim majority areas, as he had no faith in the law and order machinery. The letter of Justice AN Divecha, one of the two judges who were attacked, is a public document annexed to the report of the NHRC of 2002. The other judge was Justice MH Kadri.”
“It remains a shameful reminder of the depths to where we had fallen in 2002”, comments Setalvad, adding, “The Investigation records … show that the first attack on a Judge was within a short distance of the Gujarat High Court. It took place on the morning of February 28, 2002. No adequate protection was given to either of the judges, sitting and retired. Both, as it turned out, were Muslims.”