Teesta Setalvad stays the course to fight the good fight

Civil rights activist Teesta Setalvad has written a memoir, Foot Soldier Of The Constitution. This is not how she describes herself; this is how Fali Nariman, one of India’s seniormost lawyers, sees her. Nariman’s compliment not only recognizes Setalvad’s own tireless campaigning to defend human rights, it is also a respectful nod to her family—her great-grandfather Chimanlal Setalvad was one of three Indians on the nine-member Hunter Commission that investigated the Jallianwala Bagh massacre of 1919. Chimanlal Setalvad asked pointed questions that made General Dyer, who ordered the firing on a peaceful gathering at the Jallianwala Bagh, squirm. Her grandfather, Motilal Setalvad, was independent India’s first attorney general. Her father Atul Setalvad distinguished himself as a leading advocate in the Bombay high court, arguing cases that expanded civil liberties. The burden of history on Teesta Setalvad’s shoulders is rather heavy.

And she has fought for accountability for the violence in Gujarat in 2002 with the steadfast, stubborn dedication that’s common to many human rights defenders. I have known Setalvad for almost four decades, since we were students in Mumbai—she studied at Elphinstone College when I was at the Sydenham College of Commerce and Economics in the early 1980s; she was a reporter at The Daily and Business India when I was at India Today. In her memoir, she outlines the path her life has taken, the hurdles she has encountered, and the optimism that underlines her work. Edited excerpts from an interview:

Do you think there are sufficient safeguards for fundamental rights in the Constitution?

Yes, but they need to be deepened. For instance, the justiciability of fundamental rights has remained restricted to state violations. Large-scale violations by non-state actors remain more difficult to litigate. As also the directive principles, which have thereafter needed special legislation, like for instance the Right to Information Act, the right to food Act, and the right to education Act. The 2013 law enacted to protect the lands of small farmers, landholders and tribals (Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act) has also made another set of rights justiciable but this Central law has been vicariously undermined by four state governments: Maharashtra, Gujarat, Rajasthan and Jharkhand.

Are the reasonable restrictions in the Constitution on freedom of expression indeed reasonable?

This issue has to be revisited taking into consideration not just what, if at all, such restrictions should be, but the fact that India has seen the spawning, with impunity, of speech that incites violence against sections of Indians. This is done by politicians, elected representatives, who are all violating their oath of office to the Indian Constitution.

What structural changes are needed so that massacres such as those we saw post-Godhra in 2002, and of Sikhs in 1984, don’t recur?

With this “tu tu mein mein" (squabbling) level of discourse, which the Indian media does little to deepen, little time and attention is paid to best practices or best standards for our criminal justice system: The fact that we need time-bound trials (in India, an average criminal trial takes 15-20 years for completion); independent standards of investigation and prosecution (prosecutors should be good lawyers paid decent salaries and appointed by the judiciary, not the executive); and witness protection. Courts need to not just limit adjournments but ensure high standards within trial procedures so that witness survivors—often from marginalized backgrounds—can depose with dignity and without fear or favour.

You have been scrutinized, criticized, investigated. Yet you persist. What drives you?

The belief and conviction that not only have I/we done no wrong but what we have done, achieved and continue to do is something that needs doing. It is a measure of hope and faith in the system that we do not give up. All manner of vicious and cheap pressures have been used to coerce us into stopping. We have men in power with small hearts and petty minds whose abiding motto is vengeance and vendetta. It is important that we calmly stay the course and fight the good fight.

You see the following solutions to the present situation of slow justice and lack of accountability: mass reparations, affirmative action for social justice, non-discrimination, and ending the divisive policy of hate. You also speak of the need for reconciliation. Do you think reconciliation is possible without justice?

I believe it is important for the survivor who has been a victim of mindless, senseless violence to get justice; in the sense, for the perpetrator to be punished. I also believe that this desire for justice stems from a deep-seated need for the victim/survivor to be reassured by us—state and society—that what she/he has gone through will not be repeated with anyone again. Through our battle for justice we negotiated the punishments and on principle we did not ask for death penalty. This was grounded in the belief that a society, to be stable and move forward after upheavals caused by bitter hate-driven mass crimes, must be founded on notions of restorative justice, not retributory blood and gore. Please remember that this is not an abstract idea. In Gujarat after 27 February 2002, threat and intimidation were unleashed, mobs were allowed free will on streets, with impunity. The language was one of false revenge and vendetta. And it is this that needs to be exorcised from the public domain and discourse, not valorized, as it is being now.

Yes, eventually reconciliation is also needed between the families and the wider community of the perpetrators, and the survivors too. We saw a glimpse of this on 28 July 2016 in Naroda, when a group of Dalits took out a silent procession speaking of brotherhood and sisterhood between both Dalits and Muslims. When I spoke to my sister survivors of the Naroda Patiya massacre (in which 97 Muslims were killed by a mob on 28 February 2002), they had tears and said they felt as if a silent apology was being tendered (there had been widespread reports of Dalit involvement in the attacks on the minorities in the cities of Gujarat in 2002). But please remember, for such reconciliation to be real, the political dispensation must need shed its commitment to intimidation, vengeance and vendetta.

Salil Tripathi writes the column Here, There, Everywhere for Mint.