Skip to main content

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.

Comments

TRENDING

Economist-editor's allegations on Narmada defamatory, baseless: Medha Patkar

Counterview Desk  In a reply directly addressed to well-known economist, journalist and columnist Swaminathan S Anklesaria Aiyar’s two articles in the Times of India (republished here and here ), calling them defamatory and wondering whether they were borne out of “ignorance or a conspiracy through political alliance”, Narmada Bachao Andolan leader Medha Pakar has said that the Narmada Sardar Saravar Project and the people's movement by adivasis, farmers, labourers, fish workers, potters and all the generations’ old communities from the river valley have suddenly come to be focused on, since the Gujarat elections are in the doorstep. She believes that while the “defamatory accusations with baseless conceptions such as ‘urban naxals’ are to be laughed at as the electoral strategic moves, one gets shocked to read the articles by a known old columnist like Swaminathan Ankalesaria Aiyar, published in a reputed daily like the Times of India." According to her, Aiyar’s two articl

Corporate-political party nexus? Rise and rise of Gautam Adani under Modi regime

By Sandeep Pandey*  In last five years Rs 10,09,510 crore taken as loans by various companies from banks in India have been declared as Non Performing Assets, an euphemism for writing them off. Out of this State Bank of India alone wrote off Rs 2,04,486 crore. Only about 13% of the total written off amount was recovered. Identity of the defaulting borrowers, most of whom are influential corporates, is not revealed. Compare this to the loans taken by farmers. The names of defaulting farmers is displayed on walls in tehsil offices to shame them and some unlucky ones also land up in lock-ups there. On the contrary, a few corporate defaulters have fled the country and quite curiously the authorities didn’t seize their passports like they do with some dissenting intellectuals or activists booked under mostly false cases. Now consider the donations received by political parties in the form of electoral bonds. The identity of the donor need not be revealed even to the Election Commission or i

Facing tough times, Rajasthan's Raika herders hold first-ever camel cheese festival

By Rosamma Thomas*  During the pandemic, the annual Pushkar camel fair in Rajasthan did not occur for fear of contagion; in 2022, it was called off again as lumpy skin disease affected cattle. At Sadri in Pali district, however, festivity continues – a two-day Camel Cheese Festival was held on November 23 and 24, 2022. Visitors spent time with the camel herds and their Raika, drank camel-milk tea with the herders and then returned to lunch at the Kumbhalgarh Camel Dairy, from where the Kumbhalgarh Fort is visible, to taste camel cheese. The Raika herders have been facing a tough time – camels are no longer used as much for transport or agriculture in Rajasthan. The animals have limited utility, but their milk is prized. Camel Charisma, the dairy at Kumbhalgarh, sends camel milk across the country to people who use it in therapy – for autistic children, improved blood sugar levels, or even to treat cancer. It is believed that the health benefits of the camel milk is because the animals

BJP-RSS trap opposition in 'futile row' around Savarkar, freedom movement

By Prem Singh*  Everything in this article is just a repetition. I have been saying all this since 1991-92. It is obvious that the Congress and the RSS/BJP do not like my ideas. But most socialists, advocates of social justice and communists also dislike my thoughts. I watch their measures and efforts to deal with the present crisis with interest. I respect them and also participate. Yet, the fact it, we fall behind again and again, and the crisis goes ahead. Instead of being a solution-providers, we are seen to be a part of the crisis. How long will this last? Perhaps, if the new generation thinks differently, things may turn for better! 1 To say that modern Indian society and politics are passing through the deepest crisis ever will surely be a repetition. The crisis is deeper than the spreading of communal hatred we witness around us. In fact, the business of communal hatred is flourishing by taking its manure and water from the deep crisis. The crisis of neo-colonial slavery is pro

Carbon abatement to tackle climate change: India's failure has 'outpaced' its success

By Satorupa Karmakar*  On November 01, 2021, India took a pledge of reaching a carbon-zero stage by 2070, at the COP-26 held in Glasgow, UK. As ‘ambitious’ and dubious it may sound to some, with a short-term delay in renewable energy generation (which gained the pace post-September 2020) and drastic fall in greenhouse gas (GHG) emission level as COVID-19 emerged as a ‘necessary evil’ , the path of India’s clean energy mission could be seen being paved throughout this time. Currently ranked as the third largest GHG emitter in the world, India is projected to demand more energy in coming years due to a large population base (1.3 billion as per 2011 Census data) and primarily coal-based fast-growing economy. Rapid industrialisation in post-colonial developing countries like India, stimulated by a larger and cheaper pool of fossil fuels and labour-force depicted a continuous upsurge in temperature, heavy precipitation in some places with an overall declining rainfall and a burgeoning soc

Demand to withdraw 'anti-environment, anti-adivasi' forest conservation rules 2022

By Gopinath Majhi*  The Campaign for Survival and Dignity (CSD), Odisha, a coalition of adivasis and forest dwellers’ organisations, has sent a memorandum to the Ministry of Environment, Forest and Climate Change (MoEFCC) raising serious concerns over Forest (Conservation) Rules, 2022, notified by the Centre on June 29.  Contending that recent amendments and a host of executive orders/guidelines issued by the ministry undermine and dilute the FRA and threaten the rights of adivasis and forest dwellers, CSD demands that the 2022 FC Rules should be rescinded forthwith. Demanding withdrawal of such anti-people and anti-environment rules CSD Odisha organised a protest Dharana in front of State Assembly today on 25th November 2022 and submitted memorandums to the Hon’ble Governor of Odisha, Chief Secretary and Commissioner-cum-Secretary, ST & SC Development Department for conveying our concerns against the FC Rules 2022 to the Central Government for its withdrawal. The memorandums w

GM mustard not swadeshi, it's a patent of MNC Bayer, GoI 'misleading' SC: Modi told

Counterview Desk  In a representation to Prime Minister Narendra Modi, as many as 42 farmers’ organisations though their representatives , backed by senior scientists and experts, have said that the Government of India (GoI) should stop misleading the Supreme Court “with untrue and incorrect” statements on GM mustard. Insisting that India does not need unsafe GM mustard, in their representation, they urged the Supreme Court to order immediate uprooting of GM mustard crop in various locations. The representation comes even as a penal of experts, coming down heavily on the GoI for refusing to see how in less than a week’s time the pollen from GM mustard will “start contaminating” non-GM mustard fields with transgenes, including male sterility and herbicide tolerant traits. Alleging that the GoI is actively misleading the Supreme Court with untrue and incorrect statements on GM mustard, Kavitha Kuruganti of the Coalition for a GM-Free India said, “We can list at least five areas where Gov

Shedding Hindu-Hindi-Hindustan? New Modi-Shah love for Tamil Nadu 'ignores' Periyar

By Sandeep Pandey*   The Rashtriya Swayamsewak Sangh (RSS) or the Bhartiya Janata Party (BJP) have long argued for ‘Hindu-Hindi-Hindustan’, which into recent years has translated into a crisper English expression: ‘One Nation-One Religion-One Language’. Given this backdrop, it is curious that the BJP government has organised the Kashi Tamil Sangamam in Varanasi, the Prime Minister’s constituency. Why did the BJP and RSS feel the need for such an event? All Narendra Modi events are highly publicised and have multiple political objectives. It is never an innocuous religious/cultural event as it may appear from the face of it. Afterall, RSS calls itself a cultural organisation, but has never ceased to surprise us with its political designs. Tamil Nadu has a long history of opposing imposition of Hindi by Union governments. Periyar EV Ramasamy had opposed the idea of compulsory teaching in Hindi as far back as in 1937. The 1960s witnessed violent protests against Hindi in which a number

Never-ending saga of sin tax: What if murder is taxed at Rs 1 crore, rape at Rs 5 crore?

By Moses Raj GS, Sangeetha Thomas*  What should have ended by June 30, 2022 as a 5 year experiment has resurfaced. The government has extended the levy of GST compensation cess by another 4 years till March 31, 2026. This cess, dubbed as the sin tax imposed on sin(ful) goods, is double the highest slab on indirect taxes. But only a few pay for it and the majority benefit, unendingly. The year 2017 is a landmark year for indirect taxes. With the grand idea of ‘One Nation, One Tax’ as a fiscal slogan subsuming all State based taxes such as octroi /entry tax, Value Added Tax (VAT), sales tax, taxes on lottery, betting and gambling, luxury tax, purchase tax, entertainment tax, property tax, professional tax and central sales tax into a single framework of Goods and Services Tax (GST) changed the contours of revenue collection. Complicating it further, India, with each State having its own size and revenue problems, has the most complex and highly centralised indirect tax structure in the w

'Extremist' US Hindu global group funding hate against Indian Churches: NGO groups

Counterview Desk  As many as 14 civil rights and faith-based organizations in co-signing a letter to the US Senators, Representatives, State Governor, and other elected officials have demanded the FBI, Internal Revenue Service (IRS), and Department of Justice should investigate into Texas-based organization Global Hindu Heritage Foundation (GHHF) a fundraiser campaign for demolishing churches in India. Co-signed by Federation of Indian American Christian Organization in North America (FIACONA), North American Church of God, Southern Methodist University (SMU) Human Rights Program, Amnesty International - Dallas, World Without Genocide, Center for Pluralism, Genocide Watch, The Indian American Muslim Council (IAMC), Limitless Church, Justice for All, Hindu for Human Rights, North Texas Peace Advocates, Good Citizens of DFW, and the North Texas Islamic Council, the letter has been sent to Senators John Cornyn and Ted Cruz; Representatives Michael C Burgess, Pat Fallon, Van Taylor, Terr