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Apex Court order on Prof Saibaba 'threatens, compromises' right to personal liberty

Counterview Desk 

Calling the recent Supreme Court stay on acquitting jailed human rights activist Prof GN Saibaba a "dangerous precedent which dilutes procedural safeguards and compromises the right to personal liberty", the People's Union for Civil Liberties (PUCL) has said, "extraordinary alacrity shown by the Supreme Court in disregarding established conventions ... is a disregard of procedure to suspend a jurisprudentially rigorous judgment of the Bombay High Court which has kept faith with the Constitution."
Signed by Dr V Suresh, national general secretary, the PUCL statement says, the Apex Court order raises the question as to whether a person convicted under the anti-terror Unlawful Activities Prevention Act (UAPA) will ever benefit from an appellate court acquitting him or her, regretting, "The fact that this order is a precedent of the highest court of the land, will embolden states to press for stay of acquittal orders, thereby threatening the right to personal liberty."

Text:

PUCL expresses its serious concern over the hurried manner by which the SC permitted the Government of Maharashtra to move an urgent appeal on Saturday 16th October, 2022 against the acquittal/discharge of Prof Saibaba and 5 others by the Nagpur Bench of the Bombay HC on 14th October, 2022. It’s troubling that a well- reasoned judgment of the Bombay HC acquitting Prof. Saibaba and others, which pointed out serious shortcomings in the prosecution case relating to mandatory procedural safeguards was suspended
What is extraordinary about the CJI’s decision to permit hearing of the Maharashtra Government’s appeal against the acquittal, is that the State Government represented by Solicitor General Tushar Mehta, had orally mentioned the matter to the 2nd Bench headed by Justice DY Chandrachud and sought stay of the acquittal by the Bombay HC. Justice Chandrachud is reported by Live Law to have remarked in open court that the appeal can be listed only on Monday, thereby in effect, refusing to list the matter on Saturday. Justice Chandrachud is also reported to have noted that “He has got an acquittal in his favour. Even if we take it up on Monday, and assuming we issue notice, we cannot stay the order”. It is thereafter that the Chief Justice, on the administrative side, chose to permit a hearing before a specially constituted Bench of Justices MR Shah and Bela Trivedi, on a non-working day, Saturday, 15th October, 2022.
Two issues of grave importance arise from the decision to permit the State’s appeal to be heard before a Special Bench on a non-working day:
(i) Previously, extraordinary sittings beyond regular working hours/ days of the court were permitted only in exceptional circumstances when issues of imminent threat to personal liberty or a situation threatening grave constitutional crisis required urgent intervention of the court. Midnight hearings were permitted to stop the imminent hanging of prisoners in Yakub Menon’s case or Nirbhaya killers or threat to personal liberty as for example in Arnab Goswami or Vinod Dua cases or in the context of status of Legislative Assemblies in cases arising from Maharashtra and Karnataka. It is highly debatable as to whether the present case of Prof Saibaba and his co-convicts, who were legally and properly acquitted by the Bombay High Court, constitutes ‘a grave and extraordinary situation’ warranting special hearing on a holiday.
(ii) What is also worrying is that the Supreme court stayed an order of acquittal passed by a competent court in a criminal appeal. It is not as though the state has no remedies to challenge acquittals through `due process of law’. However, when the State, by invoking an extraordinary procedure ensures a stay of a judicial order of acquittal, it seriously threatens the very basis of `rule of Law’. It raises the question as to whether a person convicted under the UAPA will ever benefit from an appellate court acquitting him or her. This has implications for the very fundamentals of criminal and constitutional jurisprudence in India. The fact that this order is a precedent of the highest court of the land, will embolden states to press for stay of acquittal orders, thereby threatening the right to personal liberty.
This extraordinary alacrity shown by the Supreme Court in disregarding established conventions, is not disregard of procedure to serve justice better; rather it is a disregard of procedure to suspend a jurisprudentially rigorous judgment of the Bombay High Court which has kept faith with the Constitution.
The substantive contribution of the Bombay High Court in Prof Saibaba’s appeal was to insist that with respect to statutes such as the UAPA, which deviate significantly from established procedural safeguards, the State (prosecution) is under an obligation to comply strictly with existing procedural safeguards.
The reason why procedural safeguards should be mandatory is because of the history of the misuse of anti-terror laws. The Bombay High Court referenced TADA and POTA, (which pre-dated UAPA), stating that they were ‘perceived as legislation bordering on the draconian’ and that ‘cutting across political and ideological lines, the provisions of the aforesaid statutes faced severe criticism as susceptible to egregious misuse and weapon of stifling the voice of dissent.’
The procedural safeguards the Bombay High Court references in the UAPA are in Section 45 of the Act. The Bombay High Court held that the procedural safeguard of sanction by the Central or State Government must be strictly complied with before the Court takes cognizance. Under Section 45 (2) sanction for prosecution can be given by the Central/ State Government only after ‘considering the report of such authority appointed by the Central/ State Government. The purpose of Section 45(2) is to ensure an ‘independent review of the evidence gathered during the investigation’ and on that basis to ‘make a recommendation’ to the Central Government within the prescribed time limit.
While the Bombay High Court wrongly holds that the submission of the report within the prescribed time limit of seven working days is not ‘mandatory’, it rightly recognizes that, ‘Sanction serves the salutary object of providing safeguard to the accused from unwarranted prosecution and the agony and trauma of trial, and in the context of the stringent provisions of the UAPA, is an integral facet of due process of law.’
It goes on to hold that sanction must be based upon an independent review of evidence as mandated by Section 45(2) and this is a mandatory requirement. It draws support for its conclusion from the statement of Mr Chidambaram, the then Home Minister who when piloting the Bill in Parliament (in 2008-09), stated that, ‘let the Executive arm register the case, let the Executive arm investigate the case, but before you sanction prosecution, the evidence gathered in the investigation must be reviewed by an independent authority.’
On the mandatory nature of an independent review of evidence, the Bombay High Court rightly concluded that ‘We are inclined to hold, that every safeguard, however miniscule, legislatively provided to the accused, must be zealously protected.’
It is this finding of the High Court of the importance of procedural safeguards and in particular, the mandatory nature of an’ independent review of the evidence’ which the Supreme Court completely ignores.
SC did not take into consideration that Prof Saibaba is suffering from 90% disability with inadequate health facilities in prison
One is sadly reminded of one of the low points in the history of the Supreme Court, the decision in `ADM Jabalpur v Shivkant Shukla’ (AIR 1976 SC 1207) when the majority held that during the duration of the Emergency, there was no need for the executive to comply with the procedure laid down for detaining persons under MISA as the right to life under Article 21 stood suspended. This cavalier approach to procedure is castigated by Justice Khanna in his historic dissent in ADM Jabalpur who rightly opined that, ‘The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure’.
The Bombay High Court delivered a judgment which was scrupulously fair, pointing out to the unfairness of the trial court’s conviction. The High Court observed that the UAPA Special Court / Sessions Court, Gadchiroli, had stated that ‘imprisonment for life is not a sufficient punishment to accused 6 - GN Saibaba and the hands of the Court are tied in view of the fact that the imprisonment for life is the maximum punishment statutorily provided’. This observation of the Sessions Court is rightly castigated by the Bombay High Court which notes that, ‘We do not approve of the unwarranted observations of the learned Sessions Judge, which may have the unintended consequence of rendering the verdict vulnerable to the charge of lack of dispassionate objectivity.’
It’s unfortunate that the Supreme Court cites the very same trial court judgment, ignoring the observations of the constitutional court, the Bombay HC. By relying on the Sessions Court judgment, which according to the Bombay High Court lacked ‘dispassionate objectivity’, the Supreme Court has provided its imprimatur to a decision which was prima facie prejudiced, lacked judiciousness and impaired the idea of justice as fairness. The Supreme Court by ignoring the reasoning of the Bombay High Court, also implicitly gave its stamp of approval to the state’s argument that those who were ‘urban naxals’ were not entitled to the benefit of procedural safeguards of law. By doing so, the SC put aside its obligation to ensure the ‘equal protection of laws’ to all persons without fear or favour.
Finally, the Supreme Court did not take into consideration that Prof Saibaba is suffering from 90% disability and has suffered from the inadequate health facilities in Nagpur Central Prison. He has suffered close to 8 years imprisonment and cannot take care of himself. This negligence regarding the protection of the right to health of prisoners, can have tragic consequences as seen by the death of one of the convicts in this case, Pandu Narote. If the Supreme Court had at least permitted house arrest, it would have thereby allowed for appropriate medical care and treatment to be rendered by his family members. Prof Saibaba is not a flight risk and detention at home should have been seriously considered by the Supreme Court. It is unfortunate that the Supreme Court did not show the requisite constitutional compassion.
Regrettably, the consequence of the SC staying the Bombay HC order discharging him is that Prof Saibaba must remain in jail until the SC delivers its verdict in the appeal filed by the Maharashtra police against the Bombay HC ruling. The crucial question is what if eventually the SC upholds the Bombay HC order?
If it does so, then Prof Saibaba and the others convicted will continue to be in wrongful confinement. This would be a deep blow to the idea of justice and fairness. If the Supreme Court were to go on to conclude that non-compliance with sanction requirements, especially in special enactments like UAPA are only procedural and directory and not substantive and mandatory, it would indeed be a tragedy. If that happens, the ghosts of ADM Jabalpur would have truly come home to roost.

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