Booked under the draconian UAPA law, Professor GN Saibaba and five others were acquitted for the second time in the same case after the Supreme Court had, on October 15. 2022, a Saturday, overturned the earlier acquittal order of the Bombay HC. One of the co-accused died in jail in August 2022. The Sessions Court in Gadchiroli had convicted him and four others to life imprisonment in 2017 with one of the accused being given a lesser punishment.
Justice Vinay Joshi and Valmiki Menezes of the Nagpur bench of the Bombay HC, overturned the 2017 Trial Court judgment, both on the basis of the merits and procedural lapses. It reiterated its earlier position on procedural safeguards and found the investigating agency violating rules for valid seizure of evidence and also suspected the possibility of tampering of evidence due to poor handling of evidence and apparent fudging of official records.
The court also came out strongly against thought policing of individuals and relying on the judgement in Jyoti Babasaheb Chorge Vs. State of Maharashtra, said that a particular ideology or political philosophy (which may be inferred from seized literature or other material) cannot be treated as a crime in itself. Along with Jyoti Chorge, it also relied on the ratio of Thwaha Fasal and Vernon vs State of Maharashtra to emphasise that mere association with a terrorist organisation (passive membership) is not sufficient to attract the relevant provisions of UAPA unless it is accompanied by intention and support to further the activities of such organisation. After refusing to consider political literature as valid evidence, the court also dismissed the video ‘evidence’.
Long walk to freedom
The Nagpur Bench of Bombay High after considering the matter afresh delivered its judgement on March 5, 2024, acquitting all the accused charged under UAPA.
The speaking order observed that, “In fact since the prosecution has failed to establish the electronic evidence in accordance with law, the said material need not be gone into as an evidence in this case.”[1] Even on the basis of merits the said ‘evidence’ were found be inadequate in the eyes of the court and the bench dismissed it to be considered as legal evidence. Analysing the ‘evidence’ of the prosecution the court noted, “Perusing these and various other literature contained in the hard disk, as claimed to have been seized from Accused No.6, the contents of these documents read and understood by any person, by themselves would not constitute an offence under Sections 13, 18, 20, 38 or 39. The documents relate to the period from the year 2006 to the year 2012, ranging for a period of 1 year to 7 years prior to registering the FIR”.
On Video Evidence (March 2024)
The court was sharply critical of the shoddy investigation of the prosecution and noted, “…these videos do not in any manner portray any acts of “terrorism” contained in the various provisions of the UAPA. In fact, there is no evidence brought forth by the prosecution to connect the persons in these videos with any actual act of terrorism…”[2] It further lambasted the State for invoking the charge of conspiracy and said, “In order to attract the offence of conspiracy, besides vague allegations that they have conspired to wage war against the Government or advocated arms struggle, there is no other material.”[3]
The court concluded that, “In our view, there is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void… We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice”[4].
The Maharashtra government has already challenged this decision in the Supreme Court even though the High Court has refused to stay its order, noting that the matter affects personal liberty of the citizens.
This order of the Bombay High Court may be read here:
Criminal Appeal Nos. 136 & 137 of 2017.
The tragic take of Professor GN Saibaba and others: a background
The former Delhi University professor GN Saibaba was first arrested on May 9, 2014 by the Maharashtra police on charges of entering into a criminal conspiracy with senior Naxal commanders Narmadakka and Ramdhar, and was charged with various draconian sections of the Unlawful Activities (Prevention) Act (UAPA) dealing with conspiracy, and membership of ‘a terrorist gang or organisation’. Hem Mishra, the then student of Jawaharlal Nehru University (JNU), was arrested by the police in 2013 in the case of Naxalite involvement and had named Saibaba as an “urban contact” for the banned Maoists.
Convicted by the Sessions Court in Gadchiroli District in this case of Maoist involvement in 2017, Saibaba and others had been sentenced to life imprisonment. Only one of the accused received a lesser sentence. Other accused in the case are Pandu Pora Narote, who died in August 2022, Mahesh Tirki, Hem Keshwdatta Mishra, Prashant Rahi and Vinay Nan Tirki, Live Law reported[5]. Saibaba has been accused by the prosecution of working with Revolutionary Democratic Front (RDF), believed to be a frontal organisation for the banned Communist Party of India (Marxist).
The decade long battle for justice for Saibaba was marked with particular apathy even brutality by the Nagpur jail authorities given the fact that Saibaba is 90% disabled and suffers from several comorbidities. His incarceration was thus marked by consistent failure by jail authorities to provide him adequate health support. Sabrang India had reported repeatedly in 2020, 2021 and 2022 how his exasperated lawyer, Akash Sorde had publicly told the Nagpur jail superintendent that “the staff even refused to accept warm caps, a handkerchief, towel, napkin, T-shirt, a medical hand weight that Saibaba needs for physiotherapy and shampoo. ‘Given the bone chilling cold that whole of Nagpur is facing at the moment, I fail to understand how else do you expect my client to save himself from cold,’”. Reportedly, he is suffering from 19 medical ailments.
The incarceration had caused international outrage with the UN Human Rights Office of the High Commission had issued the statement concerning the inhumane detention of Saibaba, the statement read, “‘Mr. Saibaba has been detained in a high security ‘anda barracks’ in conditions incompatible with his status as a wheelchair user. His 8×10 feet cell has no window and one wall made of iron bars, exposing him to extreme weather, especially in the scorching summer heat,’”.[6] In the meantime, he was also removed from his post of assistant professor from Delhi University’s Ram Lal Anand College in 2021.
The labyrinth of trial: How the process became the punishment
GN Saibaba along with other accused were first convicted in March 2017 by the Sessions Court at Gadchiroli District under Section 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 120-B (criminal conspiracy) of the Indian Penal Code (IPC). The Session Court judge Suryakant Shinde wrote in his order that “It is proved that accused No.1 Mahesh Tirki, no.2 Pandu Narote and no.4 Prashant Rahi in pursuance to the criminal conspiracy with accused no.3 Hem Mishra and no.6 Saibaba were found in possession of naxal literatures, pamphlets, letters, correspondence, audiovideo, electronic material which were to be used for inciting the people to create violence to cause public disorder and accused no.1 Mahesh Tirki, no.2 Pandu Narote and no.5 Vijay Tirki were receiving the members of banned terrorist organization CPI (Maoist) and its frontal organization RDF and were taking them safely and secretly to forest area within the Gadchiroli district to meet absconding underground naxals”[7]. All the accused except Vijay Tirke received life imprisonment sentences, Tirke received rigorous imprisonment of 10 years.
In March 2016, when the trial was still ongoing at Gadchiroli Sessions Court, the Supreme Court granted bail to Saibaba on medical grounds and reprimanded the Maharashtra government for opposing his bail plea after his bail application was rejected by the Bombay HC and said that the State has been extremely unfair to the accused to oppose his bail, especially given his medical condition[8]. Due to his deteriorating health conditions, the Bombay High Court had earlier granted him interim bail from June 2015 to December 2015 to receive medical treatment.
These orders may be read here.
Despite these orders by the High Court of Bombay, Saibaba had to consistently suffer due to lack of proper care being provided by the Nagpur Central Jail authority and it became a battle in itself to secure bail when charged under stringent UAPA law. The SC bench led by Justice J S Khehar while hearing Saibaba’s bail plea in February 2016 had directed the Maharashtra government to provide adequate amenities to Saibaba, it ordered the State, “We want you (state) to make him comfortable. Tell us how you will make him comfortable. You cannot have him in solitary confinement,” Indian Express reported.
These Orders may be read here:
Special Leave to Appeal (Crl.) No(s). 249/2016, Item No.44
Responding to Saibaba’s conviction in 2017 under the UAPA case, his lawyer Rebecca John had noted that UAPA turns mere thought into crime, the trial court had held that he was a Maoist, and accused him of idolising the Naxalbari uprising of 1967 and promoting and propagating communist ideology, Scroll reported. John was quoted as saying, “it seemed that the state was ‘trying to enter the mind of a person, into what his ideology is’”. Previously, his bail pleas were rejected by the Bombay HC in 2015, 2016, 2019, and 2020 on the ground that offences were serious in nature, even while he was suffering from various medical conditions.
Small victory with the progressive Bombay HC verdict
For his immediate family and the larger community of advocates and human rights defenders, a sigh of release came on October 14, 2022 when the Nagpur Bench of Bombay High Court acquitted all the accused, including GN Saibaba of the charges under UAPA and set aside the Trail Court judgement for violating due process of law.
The order delivered by Justice Rohit Deo and Anil Pansare pointed out that, “In view of the findings recorded by us, we hold that the proceedings in Sessions Trials 30/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the UAPA, and the common judgment impugned is liable to be set aside, which we do order”. Section 45 (1) of UAPA requires prior sanction from the Central or State Government or the officer nominated by the concerned government to begin proceeding under UAPA. In the present case the prosecution had already arrested Saibaba under UAPA and the Trial Court had begun framing the charges of UAPA even before the sanction was granted on April 6, 2015. This not only violates the provision of UAPA, but also go against the rule of law and due process, both part of Article 14 of the Indian Constitution.
The High Court pointed out that in the present case, issue related to both absence of sanction and absence of valid sanction. It directed the attention of the State to show that under UAPA, after the amendment in 2008, it was necessary that an independent authority reviews the evidence against the accused in an independent manner before recommending the sanction. The report prepared by this independent authority should be substantial enough to guide the prosecution to take the further call. This is the second count on which the sanction was found to be invalid, as the perusal of the report prepared by independent authority revealed that the report in no way aided the prosecution in determining whether the charges under UAPA were justified or not. The bench said that the report lacked application of mind and recorded that “sanction is not a ritualistic formality nor is an acrimonious exercise. Sanction is a solemn and sacrosanct act which lifts the bar and empowers the Court to take cognizance of offence. 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”.
The Bombay High court in this order had emphasised the importance of procedure safeguards, especially in the context of UAPA, and said, “…While the war against terror must be waged by the State with unwavering resolve, and every legitimate weapon in the armoury must be deployed in the fight against terror, a civil democratic society can ill afford sacrificing the procedural safeguards legislatively provided, and which is an integral facet of the due process of law, at the alter of perceived peril to national security. The siren song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of Rule of Law”. The court dismissed the argument of the State that the infirmity in obtaining the sanction was curable, but remarked that “the rule against double jeopardy has no application if the trial is held vitiated due to invalidity or absence of sanction”. The Bombay High Court was careful enough to note that the order passed by this court is purely on basis of the procedural consideration and has no bearing on the merit of the case.
This detailed order of the Nagpur bench of the Bombay High Court may be read here:
Criminal Appeal No. 136 of 2017,
The victory that did not last
The Maharashtra government immediately challenged the Bombay High Court order acquitting the accused the very same day, and in a peculiarly hurried manner approached and succeeded with an urgent hearing in the apex court on the same day. Appearing for the state government, Tushar Mehta, Solicitor General asked the Supreme Court to stay the acquittal order of the High Court.
Though the Supreme Court did not issue a stay order the same day, it nonetheless urgently listed the matter next day (Saturday) on October 15, 2022 before the bench of Justice M R Shah and Bela Trivedi.
The move raised the eyebrows, as Saturdays are non-working days for the Supreme Court, and the urgency shown was clearly to obstruct the liberty of citizens. Solicitor General Tushar Mehta, appearing for the government of Maharashtra, argued that mere procedural lapse or irregularity in obtaining sanction cannot be the ground for granting bail if the accused were already convicted by the Trail Court based on merit and detailed analysis of the evidence on record. He referred to Section 465 of the Code of Criminal Procedure (CrPC) to argue that the High Court could not have reversed or altered a sentence based on any error or irregularity in the sanction obtained to prosecute an accused unless it had considered whether the accused raised an objection regarding this irregularity during the original proceedings, SCC reported.
The Supreme Court, commenting on what it considered were the infirmities in the impugned order and thereafter observed that the Bombay High Court had not gone into the merits of the case, and acquitted the accused merely on the procedural grounds even though the accused (Saibaba) had argued the case on the basis of merits as well. The SC concurred with Mr. Mehta and said that further consideration is needed in this regard considering the provision of Section 465 of CrPC. Secondly, the SC order also suggested that since the Trial Court has already tried the case on the basis of merit and detailed analysis of the evidence (even if it has violated the procedural rules), it is safer to rely its judgement, at least in the interim, given the serious nature of the offences against “the sovereignty and integrity of the country”.
Thereafter, the SC quite unceremoniously suspended the Bombay High Court judgment acquitting the accused, while completely ignoring the violation of procedural safeguards and due process of law. Additionally, the bail plea for Saibaba was rejected alongside.
The SC finally set aside the High Court ruling on April 19, 2023, and asked it to reconsider the matter afresh, without commenting on the merits of the case. This judgement indeed proves that the maxim of “bail and not jail” remains completely upended for people charged under stringent anti-terror laws like UAPA.
This controversial order of the Supreme Court may be read here:
Criminal Appeal Nos. 1184-1185 of 2023,
Acquitted for the second time on March 5, Professor GN Saibaba was released from the Nagpur Central Jail on March 7, by 12 noon.
[1] Prateek Goyal, “Disabled, Unwell but an Enemy of the State”, The Wire, 23 May, 2015. https://thewire.in/politics/disabled-unwell-but-an-enemy-of-the-state
[2] Amisha Shrivastava, “Bombay High Court Acquits GN Saibaba & 5 Others In Alleged Maoist Links Case”, Live Law, 5 March, 2024. https://www.livelaw.in/high-court/bombay-high-court/bombay-high-court-acquits-gn-saibaba-5-others-in-alleged-maoist-links-case-orders-immediate-release-251271?infinitescroll=1
[3] “GN Saibaba’s lawyer claims Nagpur jail officials refused essentials he brought for him”, Scroll, 25 December, 2020. https://scroll.in/latest/982339/gn-saibabas-lawyer-claims-nagpur-jail-officials-refused-essentials-he-brought-for-him
[4] Sonam Saigal, “Five years on, no relief for jailed Delhi University professor Saibaba”, The Hindu, 9 May, 2019. https://www.thehindu.com/news/national/five-years-on-no-relief-for-jailed-delhi-university-professor-saibaba/article27084472.ece
[5] “India must end inhumane detention of human rights defender GN Saibaba: UN expert”, OHCHR, 21 August 2023. https://www.ohchr.org/en/press-releases/2023/08/india-must-end-inhumane-detention-human-rights-defender-gn-saibaba-un-expert
[6] “GN Saibaba removed as assistant professor from Delhi University’s Ram Lal Anand College”, Scroll, 2 April 2021. https://scroll.in/latest/991267/gn-saibaba-removed-as-assistant-professor-from-delhi-universitys-ram-lal-anand-college
[7] S.C.No.13/2014 & 130/2015, https://gadchiroli.dcourts.gov.in/wp-admin/admin-ajax.php?es_ajax_request=1&action=get_order_pdf&input_strings=eyJjaW5vIjoiTUhHQTAxMDAwMTYzMjAxNCIsIm9yZGVyX25vIjoxMCwib3JkZXJfZGF0ZSI6IjIwMTctMDMtMDcifQ=
[8] Special Leave to Appeal (Crl.) No(s). 249/2016, Item No.44, https://main.sci.gov.in/jonew/courtnic/rop/2016/904/rop_570065.pdf
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