The Supreme Court is to decide on Thursday whether to grant Mumbai-based activists Teesta Setalvad and Javed Anand anticipatory bail in the Gulberg Society Museum case. This case relates to a plan of the two activists to raise money to convert the riot-affected housing colony in Ahmedabad into a memorial for survivors of riots. The police filed a case accusing them of embezzling money that they had raised for this purpose.

If the apex court declines them bail, Setalvad and Anand, who have been fighting cases on behalf of the survivors of the 2002 riots in Gujarat for more than a decade, face a spell in jail. But senior lawyers felt that there wasn't a strong case for the custodial interrogation that the police are seeking.

Setalvad and Anand say they have sent all the papers that the investigators had asked for and appear to be fully cooperating with the investigation, said Supreme Court lawyer Karuna Nundy.

“For anticipatory bail, a court must look at the gravity of the accusation, what the person's antecedents are, and whether she will ‘flee from justice’,” she said. “Let's be clear, this is no murder or sexual assault or robbery. Teesta Setalvad is a Padma Shri. If there has been any justice for the Gujarat riots in 2002 – more convictions than for the 1984 pogrom against Sikhs – it's in large part because of her and her colleagues' belief in justice and the rule of law.”

Why jail for paper trail?

The actual case against the two activists, relating to their alleged embezzlement of funds, has not even come up in court. The police has not yet filed a chargesheet against them, more than a year after registering the first information report, in January 2014. The police has been accusing the activists of misdeeds in various affidavits that they have filed in court arguing against giving anticipatory bail to the activists.

The question, however, is how having the two activists in custody will help the investigation. The Ahmedabad crime branch froze the two activists' bank accounts when it began investigating the case in February 2014. So the activists cannot do anything on that front.

This leaves other documentary evidence that the police have asked for. The Gujarat High Court said that the  activists had not cooperated with the police during the investigation and rejected their bail application, but Setalvad and Anand have said they have given the police whatever information they wanted. It is not clear what more details they will be able to provide from jail.

The case

The case relates to a plan that Setalvad and Anand came up with to commemorate victims of communal violence. In 2007, they proposed to raise funds to purchase Gulberg Society in Ahmedabad, where 69 Muslims were killed during the 2002 riots in Gujarat, to convert into a memorial. Among those killed was parliamentarian Ehsan Jafri. But in 2012, saying they had been unable to raise more than Rs 4.6 lakh, they informed the society that they would be unable to continue with the project.

Residents of the society who were not office bearers then lodged a first information report with the Ahmedabad police accusing Setalvad, Anand and three office bearers of the Society, including Tanvir Jafri, son of murdered parliamentarian Ehsan Jafri, of misappropriating funds intended for the museum.

Soon afterwards, Setalvad and the others applied for anticipatory bail, first in the Bombay High Court, which said it did not have the jurisdiction to rule on the case. They went to the Ahmedabad sessions court, which declined them bail, so they appealed the decision in the Gujarat High Court, which has also denied them bail. The Supreme Court will now hear the case. (See timeline.)

The allegations

In its first affidavit to the Ahmedabad sessions court the police first alleged that the activists had embezzled funds they raised for the museum. In later affidavits to the same court, it accused Setalvad and Anand of more widespread misappropriation. The police eventually claimed that the two had embezzled Rs 3.85 crore from the two trusts they had founded. These are the Sabrang Trust, dedicated to anti-communalism advocacy, and Citizens for Justice and Peace, which pursues legal justice for victims of communalism.

Setalvad and Anand have countered these allegations in their own affidavits.

The police accused the two of transferring 44 percent of the total funds collected by Sabrang Trust and 35 percent of the funds collected by Citizens for Justice and Peace to their personal accounts.

The police claims the activists used some of the Rs 3.85 crore for personal expenses. In particular, they claims that the activists used credit cards to pay for these personal items and settled the credit card bills for these items by paying from the Trust's bank accounts. Setalvad and Anand have refuted this and submitted documents to the court as evidence. They say that they paid for all personal expenses from their personal bank accounts and paid only for official expenses from the two organisations' bank accounts.

Of the Rs 3.85 crore, the police alleges that the activists transferred Rs 1.69 crore from Sabrang Trust and Citizens for Justice and Peace accounts to Sabrang Communication and Publishing, a company owned by Setalvad and Anand.

But the activists say this amount went towards maintaining the office that the two non-profits shared with Sabrang Communications over 10 years. The costs include salaries of 11 staff members, not including Setalvad and Anand, on electricity, telephone bills, renovation and equipment.

The police also say that they need the activists in custody to question them about cash withdrawals allegedly running up to Rs 1.09 crore. In their affidavits, Setalvad and Anand say they have receipts for all the withdrawals and that they have submitted CDs with more than 11,000 scanned copies of cash withdrawal vouchers to the investigating officer.

Over 10 years, a total of Rs 46 lakh and Rs 28 lakh went to Setalvad's and Anand's personals accounts as their respective salaries, which works out to about Rs 39,000 and Rs 23,500 per month each, they say.