Case Diary | SabrangIndia

Wheelchair-bound Professor GN Saibaba Granted Bail by Supreme Court

Mon, 04 Apr 2016 11:08:12 +0000

Image:huffingtonpost.in

UPDATE:

While granting bail, the Supreme Court has commented that the Maharashtra police, the prosecution were extremely unfair

In granting bail, the Supreme Court has commented that the contentions of the Maharashtra government and its police ‘are extremely unfair.’ Further, ‘since the petitioner has never been accused of having misused the concession of bail’, the SC further said that ‘Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner.’ The entire order of the Supreme Court of India granting bail to professor GN Saibaba can be read below.

The operative part states that:
‘Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties, specially the undisputed position that the petitioner has never been accused of having misused the concession of bail, we are of the view, that the submission made by the learned counsel for the respondent is extremely unfair. Since all the material witnesses have been examined and cross-examined, the release of the petitioner on bail ought not to have been opposed, especially keeping in mind the medical condition of the petitioner.
In view of the above, we hereby direct the release of the petitioner on bail forthwith. Bail to the satisfaction of the trial Court.

Needless to mention, that the petitioner shall enter appearance before the trial Court, as and when the petitioner is directed to appear before the trial Court, failing which, it shall be open to the trial Court to cancel the concession of bail granted to him.’

Earlier Story:

The Supreme Court of India has today, Monday, April 4, 2016, granted bail to former Delhi University Professor G.N. Saibaba, who was arrested for alleged links with the Maoists. Close to 23 months after his arrest in May 2015 he was granted bail, Between July and December 2015 he had been granted interim bail by a division bench of the Bombay High Court that was subsequently cancelled by a Nagpur Bench of the same court.

Professor GN Saibaba, who was arrested in May 2014 for alleged links with the banned Communist Party of India (Maoist) outfit, He has been in jail since a single-judge bench of the Bombay High Court in Nagpur canceled his bail in December last year. He was initially granted bail in July 2015. The wheelchair-bound professor is more than 90% disabled. He has been paralysed from waist-downwards since contracting polio in childhood.

Saibaba had told sections of the media that his muscles had been damaged while he was being taken to Nagpur from Delhi by the Maharashtra police. While in jail, the inadequate toilet and sleeping facilities caused damage to his left arm ligaments, nerves and his spinal cord. Since obtaining bail in July, the English professor has been undergoing treatment every week at the Indian Spinal Injuries Centre in New Delhi. He had an angioplasty in August.

Sabrangindia has been consistently tracking the story. Flawed Verdict: The Bombay High Court judgement refusing bail to GN Saibaba

A copy of his petition before the Supreme Court of India can be read here.

Supreme Court Order on GN Saibaba Case (04.04.2016)

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Cry Freedom: GN Saibaba’s petition before the Supreme Court of India

Sat, 23 Jan 2016 08:29:33 +0000

Can an under trial, who is 90 per cent disabled, suffering from 90% post-polio paralysis, who can only move in a wheel chair with the assistance of two attendants and, moreover, one who suffers from serious cardiac issues including a history of heart stroke be refused bail?

This among others are the questions raised by the special leave petition (SLP) filed by professor Gokarakonda Naga Saibaba in the Supreme Court of India. Notice was issued by the court on Friday, January 22 and the matter is posted for two weeks later. (See also https://www.sabrangindia.in/article/flawed-verdict-bombay-high-court-judgement-refusing-bail-gn-saibaba)

The SLP was filed to challenge the order of the Nagpur Bench of the Bombay High Court dated December 23, 2015 on the regular bail application of professor Saibaba. At the time of passing of the order, the professor had been out on interim bail (granted by another bench of the Bombay High Court) until December 31, 2015.

Professor Saibaba was arrested in May 2014 and while other co-accused in the case have all been released on bail by the Nagpur bench of the High Court from July 2014 onwards, the differently abled professor has been denied his freedom A detailed Time-Line of this case can be read here.

The special leave petition before the Supreme Court raises serious questions of law and merit. Professor Saibaba, who surrendered on December 25, 2015, can only move in a wheel chair with the assistance of two attendants. He suffers from Anterior Horns Cell Disease; suffers bone deformity; has neurological problems; has a history of kidney and gall bladder stone; has restricted movement in the functioning of the left shoulder due to which he requires constant medical evaluation and treatment. Besides he suffers from a condition of systemic hypertension and hypertrophic cardiomyopathy as certified by the Executive Director and Dean of cardiology Fortis Hospital, Delhi.

The serious questions of law raised in his petition are:

a) Whether bail on medical grounds should be denied to an accused who is disabled; suffering from 90% post-polio paralysis; can only move in a wheel chair with the assistance of two attendants; suffers from serious cardiac issues including a complicated and serious medical condition as detailed above — due to which he requires constant medical evaluation and treatment – particularly when the charge sheet has been filed before the Trial Court and trial is underway, and when there is no apprehension that the accused will abscond?

b) Whether the fact that an under trial, who is 90% disabled, and requires at least two attendants for day-to-day activities including his toilet functions, and has several other medical ailments and complications so as to disable him from acting in a manner prejudicial to public order or security of State should be a factor to be considered in deciding bail?

d) Whether bail ought to denied to an accused against whom the sole allegation is membership of a terrorist organization (as designated under the Schedule to the Unlawful Activities Prevention Act, 1967, as amended in 2008), without any allegation of involvement in any terrorist act or any act of violence, especially after he has already spent 14 months in custody and when all other co-accused persons have been granted bail?

e) Whether the marked deterioration in the health of an under trial while he is in custody, such as to threaten his life, is a relevant change in circumstance for reconsideration of bail?

f) Whether some improvement in an under trial’s health after being admitted to interim medical bail on the grounds that his health had suffered in judicial custody, is a relevant change in circumstance for reconsideration of bail?

g) Whether an under trial can be denied bail when the sum total of the evidence claimed against him by the prosecution is “objectionable literature” and letters addressed by him to a terrorist organisation complaining that he was being discriminated and not allowed to interact with underground members of the organisation?

h) Whether mere membership of a terrorist organisation – absence of any evidence of participation in acts of disturbance of public tranquility and absence of any evidence of incitement to imminent lawless action – can be a punishable offence?

i) Whether an under trial against whom the only relevant material claimed by the prosecution is that he complained to a terrorist organisation that he was being discriminated by that organisation since they were denying him interaction with its underground activists, can be denied bail?

j) Whether a person can be denied bail for unpopular opinion and expression where such opinion and expression has neither been aimed at disturbing public tranquility nor at incitement to such disturbance?

k) Whether the High Court can dismiss a bail application on the basis of material that does not form part of the court record, i.e. an article about the accused written by a person not connected with the accused or his defence?

In the course of the hearing of the matter in the High Court, the Spinal Injuries Centre had prescribed that the petitioner (G.N. Saibaba) can be treated on an OPD basis. This was the sole factor relied upon by the Nagpur Bench of the High Court in denying him bail and cancelling his interim bail. As stated in the petition, in fact Saibaba suffers from several complications including hypertrophic cardiomyopathy and recurrent syncope requiring continuous follow-up and medical interventions.

In the 14 months that professor Saibaba remained in judicial custody, the petition states, his health has substantially deteriorated since the prison authorities could not provide him with bedding appropriate to his medical needs. These included low floor transportation to and from hospitals for his treatment; attendants who were trained or equipped to attend to him given his many complications including brittle bones; access to comprehensive, highly specialised, medical care to deal with his many complications and ailments.

He was granted medical bail by a Division Bench of the Bombay High Court on account of his deteriorating health while in judicial custody. (This was especially noted by the Division Bench in its order of June 17, 2015, relying on the report of the Chief Medical Officer, Nagpur Central Prison, dated June 16, 2015).

Following the December 23, 2015 order of the Nagpur Bench of the same High Court that had earlier granted him interim bail, professor Saibaba returned to judicial custody. There are grave chances that his health would have suffered since.

The SLP also states that there is absolutely no likelihood of the petitioner fleeing justice since he has strong roots in society – a mother, wife and child, and a permanent job as assistant professor of English literature at Ram Lal Anand college, University of Delhi

The post Cry Freedom: GN Saibaba’s petition before the Supreme Court of India appeared first on SabrangIndia.

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

Mon, 28 Dec 2015 07:08:03 +0000

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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