Flawed Verdict: The Bombay High Court judgement refusing bail to GN Saibaba

The decision of the Bombay High Court decision refusing bail to Professor GN Saibaba and issuing a contempt notice to Arundhati Roy requires a critical appraisal on various counts.
Saibaba was arrested in May, 2014 on grounds of being a Naxalite and aiding and assisting the Maoists. His application for bail was rejected by a single judge on  August 25, 2014.  In June 2015, a social activist addressed a letter to the Chief Justice about his condition which was converted into a suo motu Public Interest Litigation (PIL) and finally after various orders, Saibaba was ordered by the Division Bench of the Bombay High Court, to be released on interim bail till December 31, 2015 on medical grounds, keeping his option to apply for further orders before the Nagpur Bench. His application before the single judge of the Nagpur Bench was rejected on December 23, 2015, both on merits and on medical grounds.
Undoubtedly the Unlawful Activities (Prevention) Amendment Act, 2012 (the UAPA) is a draconian law and the provisions concerning bail for under trials are hostile to anyone who is arrested under the Act. Under the Criminal Procedure Code, bail during the trial is granted,provided the Court is satisfied that the accused is not likely to abscond or tamper with evidence and similar conditions. Under UAPA, in addition, if the Court, on the basis of the Case Diary or Report under Section 173 of the Criminal Procedure Code is of the opinion that there are reasonable grounds for believing that the accusation against such persons is prima facie true, bail cannot be granted. Such provisions have been upheld by the Supreme Court. Unfortunately, over the years, the Supreme Court has wrongly upheld the Constitutionality of various such laws such that includes TADA, POTA, AFSPA, etc. It is important here to recognize that both the Case Diary and Report under Section 173 are entirely in the hands of the investigating agency, be it the police or any other agency. They can be easily doctored or manipulated.
Here is a case where the accused is, admittedly 90%, disabled. There was no chance of him absconding. He was already on interim bail. There were no allegations that he had either tried to abscond or that he had tampered with evidence. Apart from this, his disability is a degenerative one, and one which requires constant medical treatment. In fact the Public Prosecutor had himself placed a report dated June 26, 2015 of Dr. Chandak of the Central India Medical Institute of Medical Sciences Nagpur, before the Chief Justice’s Bench; this report had stated that Saibaba suffered from anterior horn cell disease and that, therefore, he required regular physiotherapy, pain management and a regular clinical follow up. It was because of this that the Division Bench presided over by the Chief Justice granted temporary bail to Saibaba. There may have been questions of propriety in the Chief Justice hearing a matter which was already pending before the Nagpur Bench but if this was an issue at all, it should have been dealt with squarely. Saibaba has been undoubtedly suffering a lot. He was said to have had regular fainting spells and was in constant pain. Yet, the Nagpur bench of the Bombay High Court, while hearing the recent bail application came to the conclusion that since Saibaba’s situation had not worsened hence, he should be put back in jail. There was no question of, Saibaba being involved in any violent activities. At the highest, if at all, he could be said to have been providing some intellectual support to the Maoists. This by itself should not be a ground to deny anyone bail. More so, to a person who is in a state of health which Saibaba undoubtedly is, conditions could have been imposed as had been earlier done while granting him temporary bail.  The court decided otherwise.

Equally important, and possibly having broader repercussions is the order of the Court issuing contempt notice against Arundhati Roy who had written an article in the Outlook Magazine (issue of May 12, 2015) where she had made scathing remarks against the Police, the State  and the Central Governments. She has given her version (which is not only her version but a version shared by Saibaba’s family and many other democratic rights activists) as to how he was abducted and then shown to be arrested and how, thereafter, he was treated in prison.

It is important here to recognize that both the Case Diary and Report under Section 173 are entirely in the hands of the investigating agency, be it the police or any other agency. They can be easily doctored or manipulated.

It is one thing for the Court to issue contempt notice against her for scandalizing the judiciary (which in my opinion she did not do), it is altogether another thing to condemn her for expressing her views on her version of how Saibaba was treated by the police and her trenchant criticism of the authorities. The Court describes her observations as “surly, rude and boorish attitude of the author in (a) most tolerant country like India.”

The court observes that she has written the article with a mala fide motive against the police, State government and Central Government, all of which, reveal a game plan: to ensure that Sai Baba gets bail. The Court further observes, “Is it not the fact that the Central Government, the State Government, the police machinery and the armed forces are fighting for prevention of unlawful and terrorist activities in the country when the Naxal plague has taken a pincer grip.” And finally, “This Court is also surprised that despite intemperate and humiliating language used against the Central Government, State Government, the police machinery and the armed forces, they have not taken any action against the author who, in the name of freedom of speech, is exploiting the situation.”

 Yes she has castigated these bodies in extremely severe terms. But that is what journalists do. Are we to now understand that in a democracy (such as our country is) the police, the armed forces, the State government or Central government(s) cannot be criticised, their methods never be doubted? That the version of these agencies of the state has always to be believed? That we must need accept (despite contrary proof) that they always act with bona fide motive and intent and that any condemnation of them is actuated by mala fides? Does not the state of Maharashtra lead the country in custodial deaths? Have we to overlook that time after time the Courts themselves acquit persons because the investigation has been unprofessional, often deliberately so conducted? Are we to believe that the investigation in, for instance Salman Khan’s case, that was botched up (this is what the court has virtually said) because of incompetence and not driven by some extraneous, even compromising reasons? There are reports after reports from, not just in Maharashtra, but from across the country, which speak of extremely oppressive prison conditions. Should we not continuously remind ourselves that the origin of public interest litigation in India was poor prison conditions (in the Sunil Batra and Husseinara Khatoons Cases)?[1] Are we to now forget that the Supreme Court has had to develop a new remedy of granting compensation through writ petitions when they discovered in Rudul Shah’s case that the poor man had completed his jail sentence in 1969 and the jail authorities had ‘forgotten’ to release him till 1982?[2] The Supreme Court itself appointed a committee to go into wide scale human rights violations by armed forces in Manipur. The pendency of a number of Public interest litigations concerning prison conditions and lock ups coupled with the fact that they are being entertained by the Bombay High Court, is itself an indication that the situation has not changed over the years.

Arundhati Roy says Saibaba is innocent. The Court takes exception to this. Day in and day out, on social and visual media we see debates about whether the Talwars were innocent, whether Salman Khan was innocent, whether Peter Mukerjea is innocent and many more such stories. And some of these are even after conviction or acquittal. Anybody who has witnessed, seen or read these debates will realize that most of the panelists as also the anchors (on television) are completely ill informed but still express, very passionately, their views.

Arundhati has given her version of events. Having dealt with human rights cases all my practicing life, having been part of number of fact finding committees and citizens tribunals on police and armed forces brutality and corporate crimes across the years, having directly dealt with victims of state, communal, class and caste violence over the decades, I feel that Arundhati’s version is entirely possible and believable. I refuse to treat the police version or the reports of Government medical officers as sacrosanct. Am I to be castigated for this?

The Court further observes: “Is it not the fact that the Central Government, the State Government, the Police machinery and the armed forces are fighting for prevention of unlawful and terrorist activities in the country when the Naxal plague has taken pincer grip.”

While I am not a votary of violence, I personally believe that it is the policies and practices of the Central Government, State Government, the police machinery and armed forces coupled of course with misguided corporate interests which have, at least partially, been the cause of the birth and growth of Naxalism. I personally believe that many of the so called battles against Naxalism, are just a war against ordinary tribals (citizens of India) to promote mining interests. Did not the Supreme Court of India not hold that Salva Judum started by the State Government allegedly to counter Naxalsim was an unlawful body?  Am I not entitled to this view and to express it?

At least the Supreme Court seems to believe that I am entitled to this view. In Arup Bhuyan’s[3]  and some other cases the Supreme Court cited with approval the following observations of the US Supreme Court in Brandenburg Vs. Ohio, 395 US 444(1969), “………. mere advocacy or teaching the duty, necessity, or propriety of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed 'to teach or advocate the doctrines of criminal syndicalism' is not per se illegal. It will become illegal only if it incites to imminent lawless action.”

In a recent case, the Constitutional Bench of the Supreme Court dealing with restraints on media publication of judicial proceedings, observed: “Freedom of expression which includes freedom of the press has capracious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population.”

I also feel that the issue of contempt notice against Arundhati Roy is wrong and she has not committed any contempt as citing examples of bail granted by other judges in other courts in no way casts aspersions on the judge who refused bail in the present case.  I would just like to conclude with the following:

Since 1952, repeatedly, while dealing with the issue of criminal contempt the Supreme Court has cited with approval the words of Lord Atkin: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.” I am sure this also includes ordinary women.

(The author is a senior advocate in Mumbai)


[1] Sunil Batra vs Delhi Administration on 20 December, 1979, Equivalent citations: 1980 AIR 1579, 1980 SCR (2) 557 Author: Justice V Krishnaiyer; Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, … on 9 March, 1979, Equivalent citations: 1979 AIR 1369, 1979 SCR (3) 532, Author: P Bhagwati Bench: Bhagwati, P.N.Bhagwati
[2] Rudul Sah vs State Of Bihar And Another on 1 August, 1983 Equivalent citations: 1983 AIR 1086, 1983 SCR (3) 508 Author: Justice Y Chandrachud
[3] Arup Bhuyan vs State Of Assam on 3 February, 2011, Author, Justices Markandey Katju, Gyan Sudha Misra



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