Sreenivasan Jain: Disproportionate action against Teesta Setalvad?

The government does not seem to have sufficient grounds to invoke the CBI against Teesta Setalvad

When the heavy hand of the Indian state arrived at the door of Teesta Setalvad, it came as no surprise. The Gujarat police had over the past year actively pursued her arrest on charges of diverting funds meant for a museum to commemorate the 2002 riots for the personal use of her family. The Supreme Court granted temporary protection from arrest, referring the matter to a bigger bench.

The ante was then raised via a separate allegation that Setalvad's Sabrang Communications & Publishing Private Limited (SCPPL) wrongfully received $290,000 (approximately Rs 1.5 crore in today's rates) from the Ford Foundation. The Ministry of Home Affairs (MHA) steps in. The Central Bureau of Investigation (CBI) steps in registering a case, and turns up at the Setalvad residence with 16 officials who spent the better part of 24 hours to probe what appeared to be, in essence, a charge of financial impropriety.

It is this dangerous escalation that led me to question the undisguised and deeply worrying intent behind the government's exaggerated action. I think I made it clear that I am no blind devotee of Setalvad. Nor is this meant to be a certificate of innocence. Several others, too took the same qualified position, some even pointing to differences with her, but yet unequivocal in their condemnation of the manner in which action was taken.

Predictably, there was a pushback from the government's enthusiastic online support base. For starters, it was pointed out that it is normal - and presumably justifiable - for financial improprieties of individual NGO's to be probed by the CBI, even for amounts of far less monetary significance than some of the scandals investigated by that agency. That seemed akin to justifying the calling out of the Army to break up drunken brawlers. It was then pointed out -without irony - that the dubious distinction of ordering CBI probes into Foreign Contribution Regulation Act (FCRA) violations goes to the Congress. According to news reports, starting 2012, the MHA referred anywhere between 12 to 24 cases of FCRA violations to the CBI. The status of those cases is not clear; also missing was the minor detail of whether those non-governmental organisations (NGO), too, received dawn-to-dusk raids by a 16-man CBI team.

I did come across one instance of what may be a representative handling of such cases, that of the Tuticorin Diocesan Association (TDA), in a DNA report of 2012. It said the CBI after a probe into the accounts of the TDA referred the case back to the MHA, which suspended the association's account for 180 days.

Ironically, when I read the CBI's FIR - a copy-paste of the probe conducted by the FCRA division - it began in a similar vein, as a quarrel over interpreting the law. According to the enquiry, SCPPL is a private limited company and does not have an FCRA permit and hence not cleared to receive the Ford Foundation funds. Moreover, the activities for which SCPPL has received the funds - "addressing communalism and caste-based discrimination through active research" - falls, in the eyes of the MHA, outside the parameters laid down under FCRA for receipt of funds, namely educational, charitable, scientific and literary purposes.

Setalvad's lawyers have argued that the funds are not a grant, but received under a consultancy agreement with the Ford Foundation and therefore takes the transaction outside the purview of FCRA, an explanation which the MHA found unconvincing.

So far, this doesn't seem sufficient grounds to invoke the CBI; more the sort of routine dispute over interpreting the FCRA, which the division must regularly deal with, and enforce penalties if the organisation is found in breach.

But in the space of just one paragraph, the MHA segued from a dispute over funding to sinister conspiracy requiring the CBI's heavy hand. To quote from the FIR, SCPPL's activities constitute an "interference towards the internal security of India'', "prejudicially affect(ing).. harmony between communities". What are those activities? As listed in the same FIR, they are to "organise public meetings for peace", "educate lawyers on misuse of criminal law", "create strong civil society voices ... to engender peace", and "media advocacy on sensitive reporting on communities ".

In its opposition to Setalvad’s anticipatory bail application, the CBI went a step further asking that the court deny her and the others bail on grounds that there is a “deep seated conspiracy”  which can only be established by “sustained custodial interrogation” in isolation.

There may have been a time earlier in this life of the government where it might have paused to consider whether the vicious pursuit of an old bête noire does any favours to the stature of its leader, or its mandate. But we are now in a time when the blighted actions of the earlier political regime can, and are being invoked without the slightest doubt to justify the excesses of the one that came with the promise of change.